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CONCEPTUAL COMPARISONS: TOWARDS A

COHERENT METHODOLOGY OF
COMPARATIVE LEGAL STUDIES
Oliver Brand *

ABSTRACT

unctionalism is still the dominant method of comparative legal


studies. This, however, is not the case because functional analysis
is particularly well suited for the needs of comparatists, but because of a
lack of alternatives. Comparative Law and Economics and various
postmodern approaches have failed to provide more viable solutions.
The first part of this Article examines the virtues and flaws of the respective methods. Under the heading of Conceptual Comparisons, the second
part introduces a new approach to comparative law. It follows the lead of
other comparative sciences, which have abandoned functionalism some
time ago and have replaced it with typological considerations. Conceptual Comparisons adapts these considerations to the particular needs of
legal research, thus opening new avenues for the perception of law and
its role in different legal systems.
TABLE OF CONTENTS

ABSTRACT ....................................................................................405
I. INTRODUCTION ..........................................................................407
II. DOMINANT APPROACHFUNCTIONALISM ..............................409
A. Operation............................................................................ 409
B. Development ....................................................................... 411
C. Putative Problems with the Functional Method................. 412
1. Particularism ................................................................... 412
2. Externalism ..................................................................... 414
3. Ethnocentricity................................................................ 414
* LL.M. (Cambridge); Dr. iur. (Mnster); Lecturer, University of Mnster. Unless
otherwise indicated, translations are the authors own. An earlier version of this Article
won the 2005 C.J. Hamson Prize in Comparative Law at the University of Cambridge,
United Kingdom. The author would like to thank Professor John Bell of Pembroke College, Cambridge, for his little sparks of enlightenment and his caring and tireless
guidance through the dark. A further note of gratitude for their insightful remarks is
owed to Ms. Elisabeth A. Passmore and Mr. Nicholas O. Wallach of Peterhouse, Cambridge, and Mr. Matt Dyson of Downing College, Cambridge. Ms. Tyra Saechao has
handled the manuscript with more than remarkable skill and dedication. Remaining mistakes are all the authors own.

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D. Real Problems with the Functional Method ...................... 415


1. Axiomatic Problems........................................................ 415
a. First Premise: Law as a Solution of Problems ........... 415
b. Second Premise: Similarity of Problems .................... 417
c. Third Premise: Problems Are Solved in a Similar
Way ................................................................................. 418
2. Operational Problems...................................................... 419
a. Pseudo-Factuality ....................................................... 419
c. Contemporality............................................................ 419
E. Conclusion.......................................................................... 420
III. ALTERNATIVE APPROACHES ...................................................421
A. MatteiComparative Law and Economics........................ 421
1. Operation......................................................................... 421
2. Development ................................................................... 423
3. False Trails of Criticism.................................................. 424
4. Real Problems ................................................................. 425
a. Ambiguity .................................................................... 425
b. Non-Neutrality ............................................................ 426
c. Distortedness............................................................... 428
B. LegrandComparative Law as Hermeneutic Exercise ..... 428
1. Operation......................................................................... 429
2. Development ................................................................... 430
3. Problems ......................................................................... 431
C. FrankenbergCritical Comparative Law ......................... 432
1. Operation......................................................................... 432
2. Development ................................................................... 433
3. Problems ......................................................................... 434
4. Conclusion ...................................................................... 435
IV. OWN APPROACHCONCEPTUAL COMPARISONS ...................435
A. Preliminary Remarks.......................................................... 435
1. Presuppositions ............................................................... 435
2. Conceptualisation............................................................ 436
3. Overview......................................................................... 438
B. Operation............................................................................ 439
1. First Phase: Conceptual Orientation ............................... 439
a. Qualitative Analysis .................................................... 441
i. Defining Properties .................................................. 443
ii. Gradation ................................................................ 445
b. Quantitative Analysis .................................................. 445

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c. Example: Conceptualization of Second-tier Protection


for Inventions .................................................................. 446
i. Pre-existing Conceptualization ................................ 447
ii. Mis-conceptualization............................................. 448
iii. Re-conceptualization ............................................. 450
2. Second Phase: Systematic Comparison .......................... 453
a. Descriptive Stage ........................................................ 453
b. Identification Stage ..................................................... 454
c. Explanatory Stage ....................................................... 455
d. Contextuality ............................................................... 457
C. Applications........................................................................ 457
1. Deviant Case Studies ...................................................... 458
2. Contrastive Comparisons ................................................ 458
3. Developmental and Hybrid Studies ................................ 460
4. Taxonomic Comparisons ................................................ 460
5. Prototype Studies ............................................................ 462
6. Diachronous Comparisons .............................................. 462
7. Case Studies .................................................................... 463
D. Virtues of the Method......................................................... 463
E. Possible Objections to the Method ..................................... 465
I. INTRODUCTION
Oh eerie tis to roam the fen, 1 shivers the Mnsterian poet Annette
von Droste-Hlshoffand boggy indeed are the contemporaneous fields
of comparative law. Peril seems to lurk under every footstep because
comparatists supposedly try to reach dry ground without the guidance of
serious thoughts on methodology. Methodological avoidance, 2 agnosticism, 3 or even anarchism 4 are said to be prevalent. On closer reflec1. ANNETTE VON DROSTE-HLSHOFF, Der Knabe im Moor, in SMTLICHE WERKE 83
(1966) (F.R.G).
2. Hiram E. Chodosh, Comparing Comparisons: In Search of Methodology, 84 IOWA
L. REV. 1025, 1044 (1999); William Ewald, Comparative Jurisprudence (I): What Was It
Like to Try a Rat?, 143 U. PA. L. REV. 1889, 1891 (1995) [hereinafter Ewald, Comparative Jurisprudence (I)].
3. John C. Reitz, How to Do Comparative Law, 46 AM. J. COMP. L. 617, 618 (1998);
see Geoffrey Samuel, Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences, in EPISTEMOLOGY AND METHODOLOGY OF COMPARATIVE LAW
35, 3536 (Marc Van Hoecke ed., 2004).
4. TP van Reenen, Major Theoretical Problems of Modern Comparative Legal
Methodology (1): The Nature and Role of the Tertium Comparationis, 28 COMP. & INTL

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tion, however, the methodological malaise of comparative law seems to


be incoherence rather than a lack of efforts. From the mid-1990s onward,
scholars sailing under the somewhat enigmatic banner of postmodernism 5 have sparked a lively debate on comparative methodology. Comparatists nonetheless still start from different points and proceed in different directions with different goals, as Merryman complained as early
as 1974. 6 Meaningful results are obscured because the different schools
of methodological thought do not engage in constructive discourse. Thus,
the central question of whether we can we afford a pluralism of methods7
in comparative law or whether we have to encourage consensus 8 has become a Gordian knot.
This Article will try to sever the knot by devising a methodological approach to comparative studies that allows scholars to work in their different traditions, but come to coherent results. My argument consists of
three parts. First, I will present the dominant approach to comparative
studies, functionalism, and analyze it critically (Part II). Subsequently,
newer trends that challenge functionalism are introduced and assessed
(Part III). In these parts it will be maintained that none of the existing
methods suitably fulfils the needs of the comparatist, either to serve as a
platform for dialogue or to demand supremacy over the other approaches. Accordingly, Part IV is dedicated to the proposal, explanation,
and illustration of a new method of comparative legal studies: Conceptual Comparisons.

L.J. S. AFR. 175, 175 (1995); see Georges Langrod, Quelques rflexions mthodologiques
sur la comparaison en science juridique [Some Methodological Reflections on the Comparison in Juridicial Science], 9 REVUE INTERNATIONALE DE DROIT COMPAR [R.I.D.C.]
353, 35456 (1957) (Fr.).
5. Anne Peters & Heiner Schwenke, Comparative Law Beyond Post-Modernism, 49
INTL & COMP. L.Q. 800, 801 (2000).
6. John Henry Merryman, Address to the Ninth International Congress of Comparative Law in Teheran (1974); see also John Henry Merryman, Fines, Objeto y Metodo del
Derecho Comparado, 9 BOLETN MEXICANO DE DERECHO COMPARADO 65 (1976), available at http://www.juridicas.unam.mx/publica/librev/rev/boletin/cont/25/art/art5.pdf.
7. Jaakko Husa, Farewell to Functionalism or Methodological Tolerance?, 67
RABELSZ 419, 444 (2003); Ralf Michaels, Im Westen Nichts Neues: 100 Jahre Pariser
Kongre fr RechtsvergleichungGedanken anllich einer Jubilumskonferenz in New
Orleans, 66 RABELSZ 97, 114 (2002) (F.R.G); Vernon Valentine Palmer, From Lerotholi
to Lando: Some Examples of Comparative Law Methodology, 53 AM. J. COMP. L. 261
(2005).
8. Xavier Blanc-Jouvan, Centennial World Congress on Comparative Law: Opening
Remarks, 75 TUL. L. REV. 859, 863 (2001).

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II. DOMINANT APPROACHFUNCTIONALISM


In the history of comparative law, periods of integrative comparison
have continuously exchanged with those of contrastive comparison. 9 Today, the hallmark of the former, the so-called functional method, has
risen to a position of dominance: 10 functionalists author the major treatises on comparative law, fill the editorial boards of comparative journals, and preside over societies dedicated to the study of the subject.
A. Operation
Functionalism is so centrally relevant to contemporary comparative
law because of its orientation towards the practical. It is particularly concerned with how to compare the laws consequences across legal systems
and therefore allows rules and concepts to be appreciated for what they
do, rather than for what they say. Functionalists believe that the function of a rule, its social purpose, is the common denominator (tertium
comparationis) that permits comparison.
Functional comparisons rest on three central premises. The first premise relates to the realist conception of the law as an instrument for channeling human behavior and claims that the law answers to social needs or
interests. 11 This premise establishes the problemsolution approach
that functionalists champion. 12 They begin their comparisons by choosing a particular practical problem. Then, they present legal systems with
regard to how they resolve this problem. In a third step, similarities and
differences between the solutions are listed, explained, and evaluated.
The second premise of functionalism addresses the problem that the
actual function of legal institutions is a matter of sociological concern.
To avoid large-scale empirical investigations, functionalists presuppose
that the problems that the law is asked to resolve are similar or even
identical across different legal systems. If law is seen functionally as a
regulator of social facts, the legal problems of all countries are similar.
Every legal system . . . is open to the same questions and subject to the
9. Rudolph B. Schlesinger, The Past and Future of Comparative Law, 43 AM. J.
COMP. L. 477, 477 (1995).
10. Peter Leyland, Oppositions and Fragmentations: In Search of a Formula for
Comparative Analysis?, in COMPARATIVE LAW IN THE 21ST CENTURY 211, 215 (Andrew
Harding & Esin rc eds., 2002); Peters & Schwenke, supra note 5, at 809. But cf.
Michele Graziadei, The Functionalist Heritage, in TRADITIONS AND TRANSITIONS 100,
100 (Pierre Legrand & Roderick Munday eds., 2003).
11. Richard Hyland, Comparative Law, in A COMPANION TO PHILOSOPHY OF LAW
AND LEGAL THEORY 184, 18587 (Dennis Patterson ed., 1999).
12. KONRAD ZWEIGERT & HEIN KTZ, INTRODUCTION TO COMPARATIVE LAW 4344
(Tony Weir trans., 3d ed. 1998); Husa, supra note 7, at 425.

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same standards, even in countries of different social structures or different stages of development. 13
The third methodological premise of functionalism, the praesumptio
similitudinis, maintains that legal systems tend to resolve practical questions in the same way. [D]ifferent legal systems give the same or very
similar solutions, even as to detail, to the same problems of life, despite
the great differences in their historical development, conceptual structure, and style of operation. 14 Two reasons explain the existence of this
rather counter-intuitive presumption. First, it enables the comparatist to
scrutinize social problems and their solutions within the familiar legal
framework, rather than having to venture into sociological research. Second, the presumption of similarity can be used as a means of testing the
results of a comparison:
the comparatist can rest content if his researches . . . lead to
the conclusion that the systems he has compared reach the
same or similar practical results, but if he finds that there are
great differences or indeed diametrically opposite results, he
should be warned and go back to check again whether the
terms in which he posed his original question were indeed
purely functional, and whether he has spread the net of his researches quite wide enough. 15

The praesumptio suggests that comparative research is not complete until


it has been demonstrated that the legal systems under consideration reach
similar results in similar circumstances. This highlights that functional
studies are out for the grand similarities of legal systems, not for differences in detail.
Grounded on these three premises, functionalists have been most interested in explaining how norms are similar or different from one jurisdiction to another, how such norms are borrowed or transplanted, and how
they are expressed in differing or similar kinds of rules. Normatively,
they have fostered the production of uniform law, most suggestively with
13. ZWEIGERT & KTZ, supra note 12, at 44. For a more cautious analysis, see Hein
Ktz, Abschied von der Rechtskreislehre?, 6 ZEITSCHRIFT FR EUROPISCHES
PRIVATRECHT 493, 50405 (1998) (F.R.G); for an even more fundamental functionalist
view, see Uwe Kischel, Vorsicht, Rechtsvergleichung!, 104 ZEITSCHRIFT FR
VERGLEICHENDE RECHTSWISSENSCHAFTEN 10, 16 (2005) (F.R.G).
14. ZWEIGERT & KTZ, supra note 12, at 39.
15. Id. at 40; see also A.E. rc, Method and Object of Comparative Law, in
METHODE EN OBJECT IN DE RECHTSWETENSCHAPPEN 57, 6061 (H.W. Blom & R.J. de
Folter eds., 1986) (F.R.G).

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their attempt to delineate a common core of legal institutions. 16 They


believe that they can study legal systems neutrally. The choice of functionality as a tertium comparationis is partially an expression of the desire to avoid seeing foreign legal systems through the mind-set of ones
own legal system. 17 The functional method disregards differences in
technical-juridical construction and legal concept so as to deconstruct the
local dimension of rules: the solutions we find in the different jurisdictions must be cut loose from their conceptual context and stripped of
their national doctrinal overtones so that they may be seen purely in the
light of their function, as an attempt to satisfy a particular legal need. 18
B. Development
From the late nineteenth century onwards, functionalism permeated all
social sciences. In comparative law, it supplanted previous formalism in
the 1920s. Conventionally, Ernst Rabel is its proclaimed father. 19 In the
1950s and 60s, functionalism in comparative law was cross-fertilized
with anthropological and sociological functionalism, particularly due to
the influence of Luhmann. 20 This embededness of comparative legal
functionalism in the network of the social sciences raises first doubts
over its future: from the 1970s onward, objections to functionalism convinced the other social sciences to abandon it. 21 That begs the question of
whether law is the happy match for functionalism or whether similar
objections that uprooted functionalism in other social sciences also necessitate its abandonment for comparative law.

16. See generally PIERRE BONASSIES ET AL., FORMATION OF CONTRACTS: A STUDY OF


(Rudolf Schlesinger ed., 1968).
17. David J. Gerber, Sculpturing the Agenda of Comparative Law: Ernst Rabel and
the Facade of Language, in RETHINKING THE MASTERS OF COMPARATIVE LAW 190, 199
(Annelise Riles ed., 2001).
18. ZWEIGERT & KTZ, supra note 12, at 44; Reitz, supra note 3, at 62122.
19. ZWEIGERT & KTZ, supra note 12, at 61; Ulrich Drobnig, Die Geburt der modernen Rechtsvergleichung, 14 ZEITSCHRIFT FR EUROPISCHES PRIVATRECHT 821 (2005)
(F.R.G); Peters & Schwenke, supra note 5, at 808. In fact, Rabels method merely rephrases earlier studies of Max Solomon. See generally MAX SALOMON, GRUNDLEGUNG
ZUR RECHTSPHILOSOPHIE 2639 (1925) (F.R.G). To focus on Rabel, however, is defensible on the ground that he and his disciples became leading comparatists in the United
States and Germany, and thus guarantors for the success of the method.
20. Gnter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26
HARV. INTL L.J. 411, 434 (1985) [hereinafter Frankenberg, Critical Comparisons]; Annelise Riles, Wigmores Treasure Box: Comparative Law in the Era of Information, 40
HARV. INTL L.J. 221, 233 (1999).
21. William R. Schonfeld, Political Parties: The Functional Approach and the Structural Alternative, 15 COMP. POL. 477, 47880 (1983).
THE COMMON CORE OF LEGAL SYSTEMS

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Another issue is that in the beginning, functionalismas devised by


Rabelserved only two very specific ends. First, it was meant to solve
the characterization problem in the field of conflict of laws, which was of
great scholarly concern during the first decades of the twentieth century. 22 Secondly, efforts were undertaken at the same time to unify
commercial law in a new and unstable socio-economic environment. 23 In
particular, the International Institute for the Unification of Private Law
(UNIDROIT) in Rome asked a number of leading comparative scholarsamong them Rabelto draft a uniform law for the international
sale of goods. Rabel hypothesized that, if the legal constructions and
characterizations particular to each legal system were ignored and if attention were instead directed exclusively to the laws actual consequences, then a common or best solution would emerge naturally and
directly from the comparison. 24
Rheinstein, one of Rabels disciples, first suggested that the functional
method could be generalized and applied beyond the contexts of conflict
of laws and unification of law to the entire comparative process. 25 This
generalization is related to theories of sociological jurisprudence, especially those of Pound and von Jhering (Interessenjurisprudenz). 26 However, that functionalism originated as a specialized instrument to deal
with specific problems casts doubt over the validity of this generalization.
C. Putative Problems with the Functional Method
Accordingly, the functional method has not escaped criticism. Some of
the objections, however, miss the point: while aiming at the method as
such, they in fact hit instances of incorrect exercise of functionalism.
1. Particularism
Gerber has accused the functional method of producing results that are
particularist, i.e., unrelated to the socio-economic and historical cir-

22. Graziadei, supra note 10, at 10304.


23. BASIL MARKESINIS, COMPARATIVE LAW IN THE COURTROOM AND IN THE
CLASSROOM: THE STORY OF THE LAST THIRTY-FIVE YEARS 45 (2003).
24. Ernst Rabel, Aufgabe und Notwendigkeit der Rechtsvergleichung, 3 GESAMMELTE
AUFSTZE 17 (1924) (F.R.G).
25. MAX RHEINSTEIN, EINFHRUNG IN DIE RECHTSVERGLEICHUNG 2527 (2d ed. 1987)
(F.R.G).
26. See F. C. Auld, Methods of Comparative Jurisprudence, 8 U. TORONTO L.J. 83, 86
(1950).

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cumstances that dictated them. 27 In another version of this critique, the


functional method is criticized for being formalistic or legocentric. 28
As an essentially empirical-inductive method, it is said to rely too heavily on positive legal phenomena embodied in rule-texts and to pay too
little attention to law in action, i.e., the law in its practical application.
Indeed, when turning to the leading textbooks, the numerous facts deliberately left out of the picture because they are considered disruptive to
the operation of the method is surprising. Schlesinger, for example, fails
to mention history, mores, and ethics. 29 While it may be true that many
functionalists did not always attend to all the factors that play a part in
the production of the problem being examined, more recent studies have
shown that the functional method as such is capable of doing so. Modern
functional comparisons generally accept that comparatists should study
not law in books, but law in action 30 though they might not always
adhere to this advice in practice. Additionally, they routinely study rules
and institutions as part of a larger socio-legal and political context and
assess customs and other social practices as devices for solving problems, as, for example, Cappelletti proved in his piece on questions of
civil procedure. 31 However, even the most contextual study can only partially address the extra-legal interdependencies of law. Legal comparisons remain essayistic. 32 This is not a particular flaw of functionalism,
but a truth that comparatists will have to accept independently from the
method with which they are working.

27. Gerber, supra note 17, at 204; see also MARKESINIS, supra note 23, at 39; Graziadei, supra note 10, at 109.
28. Frankenberg, Critical Comparisons, supra note 20, at 438; Lawrence M. Friedman, Some Thoughts on Comparative Legal Culture, in COMPARATIVE AND PRIVATE
INTERNATIONAL LAW: ESSAYS IN HONOR OF JOHN HENRY MERRYMAN ON HIS SEVENTIETH
BIRTHDAY 49, 52 (David S. Clark ed., 1990); see also Pierre Legrand, How to Compare
Now, 16 LEGAL STUD. 232, 235 (1996) [hereinafter Legrand, How to Compare Now].
29. RUDOLF B. SCHLESINGER ET. AL., COMPARATIVE LAW: CASES, TEXT, MATERIALS
32 (5th ed. 1992).
30. RENE DAVID, TRAITE ELEMENTAIRE DE DROIT CIVIL COMPARE [ELEMENTARY
TREATISE ON COMPARATIVE CIVIL LAW] 1725 (1950) (Fr.); see 1 ADOLF F. SCHNITZER,
VERGLEICHENDE RECHTSLEHRE 3132 (1961) (F.R.G); Ulrich Drobnig, Methods of Sociological Research in Comparative Law, 35 RABELSZ 496, 498 (1971); William Ewald,
Posners Economic Approach to Comparative Law, 33 TEX. INTL L.J. 381, 383 (1998)
[hereinafter Ewald, Posners Economic Approach].
31. MAURO CAPPELLETTI & BRYANT GARTH, A World Survey, in 1 ACCESS TO JUSTICE
78 (1978); see also Husa, supra note 7, at 423.
32. Wolkfgang Mincke, Eine vergleichende Rechtswissenschaft, 83 ZEITSCHRIFT FR
VERGLEICHENDE RECHTSWISSENSCHAFT 315, 32324 (1984) (F.R.G).

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2. Externalism
More serious is the accusation that functional studies suffer from taking a purely external view upon the legal systems under comparison.
Adopting such a perspective is said to lead to a lack of immersion, i.e.,
a failure in understanding the ideas that lie behind foreign legal systems
from the inside. 33 Externalism, however, is not necessarily disadvantageous at all, as elucidated by the search for hidden assumptions of different legal systems begun in the 1990s. 34 Such assumptions are difficult to
detect by lawyers within a particular system, but are more easily understood by foreign lawyers looking from the outside. It is usually the latter
who unveil the explicatory potential of unconscious legal assumptions
that are so obvious that culturally immersed lawyers are barely aware
of them. Furthermore, it is an illusion to believe that the comparatist will
ever be able to immerse in a foreign legal culturehowever closely
related this culture might be. Kohler and Grofeld are right: the comparatist will always remain bound by his or her preconceptions and cultural
disposition; the comparatist will stay one of his [or her] own people. 35
3. Ethnocentricity
Another supposed flaw of the functional method is ethnocentricity. 36
For the last several decades, U.S.-based migrs from Europe and their
students have led the functional community. These scholars have maintained close ties with their European counterparts. Not surprisingly,
therefore, functional studies focus almost exclusively on the comparison
of American and European legal systems. That certainly neglects problems and solutions of more remote societies. However, it is probably
more telling about the attitudes and agendas of contemporary compara33. William Ewald, The Jurisprudential Approach to Comparative Law: A Field
Guide to Rats, 46 AM. J. COMP. L. 701, 70304 (1998) [hereinafter Ewald, A Field
Guide to Rats].
34. See, e.g., Ichiro Kitamura, Brves rflexions sur la mthode de comparaison
franco-japonaise [Brief Reflections on the French-Japanese Comparative Method], 47
REVUE INTERNATIONALE DE DROIT COMPAR [R.I.D.C.] 861 (1995) (Fr.); Rodolfo Sacco,
Mute Law, 43 AM. J. COMP. L. 455 (1995).
35. See Bernhard Grofeld, Sinn und Methode der Rechtsvergleichung, in
FESTSCHRIFT FR OTTO SANDROCK 329, 339 (Klaus Peter Berger ed., 2000) (F.R.G); J.
Kohler, Ueber die Methode der Rechtsvergleichung, in 28 ZEITSCHRIFT FR DAS PRIVATUND FFENTLICHE RECHT DER GEGENWART 27384 (1901) (F.R.G). See also Kischel,
supra note 13, at 14.
36. LEONTIN-JEAN CONSTANTINESCO, TRAITE DE DROIT COMPARE, TOME III: LA
SCIENCE DES DROITS COMPARES 63 (1983) (Fr.) [hereinafter CONSTANTINESCO, TOME III];
Nora V. Demleitner, Combating Legal Ethnocentrism: Comparative Law Sets Boundaries, 31 ARIZ. ST. L.J. 737, 74144 (1999); Michaels, supra note 7, at 10709.

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tists than about the theoretical limits of their method. Functionalism, as


such, hasas we will seereductionist tendencies, but it does not command or foster ethnocentricity.
D. Real Problems with the Functional Method
However, some problems are inherent to the functional method and are
not only issues of implementation. They can be divided into two categories: (1) axiomatic ones that originate from the three presuppositions that
underpin the functional method; and (2) shortcomings in its operation.
1. Axiomatic Problems
a. First Premise: Law as a Solution of Problems
The first basic assumption of functionalism, that law is a rationally developed entity fulfilling a specific purpose, 37 is a weak starting point.
Too many factors that in practice obscure the effectiveness of legal rules
are left out of the picture. Saying that law solves problems, for example,
presupposes also that it is capable of doing so. That is not always the
case. There are bodies of law that are dysfunctional in one of four ways.
Firstly, there might be situations where law is enacted for purely symbolical reasons. For instance, a legislator may want to be seen as doing
something rather than actually being committed to tackling a problem, as
occurred with the German legislation on combat dogs in 2000. 38 Secondly, norms that would usefully address social problems may be absent
in a particular system. Especially strong ideologies might hinder the law
in answering social problems effectively, as socialism did with the right
of workers to strike. 39 Thirdly, a legal institution may serve ends or obtain results that were neither foreseen nor desired by its framers (unintended functions). The main instance of dysfunctionality, however, is
that a legal institution might have lost its particular function altogether so
that its existence can only be explained historically. Alan Watson has
examined the evolution of the rules of private law in various civil law
countries. 40 He found that while underlying social, economic, and politi37. See supra Part II.A.
38. See Rudolf Wassermann, Gesetzgebungsethik?Der pltzliche Eifer des Normgebers beim Kampf gegen die Kampfhunde, 35 NEUE JURISTISCHE WOCHENSCHRIFT
2650 (2000) (F.R.G).
39. See CONSTANTINESCO, TOME III, supra note 36, at 65.
40. ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 107
18 (2d ed. 1993); Alan Watson, Legal Culture v. Legal Tradition, in EPISTEMOLOGY AND
METHODOLOGY OF COMPARATIVE LAW, supra note 3, at 1, 3; see also JOHN BELL, FRENCH
LEGAL CULTURES 17 (2001); LEONTIN-JEAN CONSTANTINESCO, TRAIT DE DROIT

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cal circumstances have changed, entire bodies of law, mostly from the
Corpus Iuris Civilis, have been transplanted, essentially unaltered, from
society to society. Any interesting connection between the social context
of those countries and the rules of their private law remained elusive;
legal borrowings often proved inappropriate. One has to conclude that
the notion of law as mirror of society is, in fact, just a mirage. Not all
legal norms and doctrines are functionally related to social life because
they run counter to any conceivable need or interest.
A reversed image of the dysfunctionality problem is the multifunctionality dilemma. Functional studies tend to regard the function of law as a
monolithic, independent entity. They focus on the function of legal
institutions. 41 However, a specific legal institution can have simultaneously diverse functions. 42 There might be universal social requirements
that need answering. These wants, however, are often accompanied and
even eclipsed by needs that are specific to a particular society. Correspondingly, law has not only generic functions, but also at the same time
national or regional functions. 43 A contract, for example, universally secures the parties expectations of performance. In a market-based economy, it also allows the parties to administer autonomously their economic relations; whereas in a command economy, a contract is a tool to
fulfill the goals set out by the plan. 44 Is that really functionally equivalent? A study by Folke Schmidt has revealed that collective labor contracts have as many as five distinct functions. 45 These functions are furthermore dependent on the specific institutional setting in which they are
performed. Institutions and structures of a society reflect its unique historical experience and its established ways of working. Bell rightly ex-

COMPAR, TOME II: LA MTHODE COMPARATIVE 86, 322 (1974) (Fr.) [hereinafter
CONSTANTINESCO, TOME II]; Ewald, A Field Guide to Rats, supra note 33, at 702; D.
Kokkini-Iatridou, Some Methodological Aspects of Comparative Law: The Third Part of
a (Pre-)Paradigm, 33 NETH. INTL L. REV. 143, 160 (1986).
41. See supra Part II.A; ZWEIGERT & KTZ, supra note 12, at 44.
42. See Oliver Brand, Grundfragen der RechtsvergleichungEin Leitfaden fr die
Wahlfachprfung, JUS 1082, 1087 (2003) (F.R.G); Jonathan Hill, Comparative Law,
Legal Reform and Legal Theory, 9 OXFORD J. LEGAL STUD. 101, 108 (1989); Peters &
Schwenke, supra note 5, at 828; Rudolf Schlesinger, The Common Core of Legal Systems, in LEGAL ESSAYS IN HONOR OF HESSEL N. YNTEMA 65, 6869 (Kurt H. Nadelmann
& Arthur T. von Mehren eds., 1961).
43. CONSTANTINESCO, TOME III, supra note 36, at 6364; John Bell, Comparative
Public Law, in COMPARATIVE LAW IN THE 21ST CENTURY 235, 243 (Andrew Harding &
Esin rc eds., 2002).
44. See Brand, supra note 42, at 1087.
45. Folke Schmidt, The Need for a Multi-Axial Method in Comparative Law, in
FESTSCHRIFT FR KONRAD ZWEIGERT 525, 533534 (Herbert Bernstein ed., 1981).

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plained the distinctiveness of constitutional provisions in Europe by the


unique problems of the past that the respective jurisdictions wanted to
deal with, e.g. Germany with regard to the failure of the Weimar Republic. 46
Concentrating on one generic function as the delimiting trait of the
social problem under scrutiny consequently ignores alternative conceptualizations that could be established when choosing another function as
the tertium comparationis. Functionalism therefore runs the risk of miscomprehending or even overlooking the institutions cumulative contribution to the respective legal system.
b. Second Premise: Similarity of Problems
As our look at the roots of functionalism in the early twentieth century
has shown, the method was not designed as a basis for all comparative
studies. Especially its second presupposition, that problems are similar
across legal systems, imposes severe operational limitations upon it. 47
The implied universalism of this premise confines comparatists to dealing with problems defined in similar practical terms. As soon as one system attributes a different social significance to a particular problem, the
similarity of function (and the comparability of solutions) ends.
Acknowledging this, functionalists frankly admit that there are blind
spots, areas of the law, e.g., the law of wills or same-sex marriages,
which are system conditioned to an extent so that they are beyond the
reach of their method. 48 Even if you accept this proviso, the functional
method is deficit because it neither offers a precise definition of the term
system conditioned, nor shows a way in which the comparatist may
distinguish between system conditioned problems and those that are
not. 49 This shortcoming has a wider implication. If functionalism is not
capable of dealing with individual system conditioned institutions,
how can it investigate the socio-economic relativity of the legal system
as a whole?
Another blind spot of functionalism is its lack of causal explanation.
By definition, the method reverses the usual order of cause and (social)
effect by explaining things in terms of what happens afterward, not what
came before. This prevents functionalists, for example, from examining
filial relationships between legal systems and institutions properly, be46. Bell, supra note 43, at 24142.
47. See PETER DE CRUZ, COMPARATIVE LAW IN A CHANGING WORLD 23033 (2d ed.
1999); Husa, supra note 7, at 424; van Reenen, supra note 4, at 18889.
48. ZWEIGERT & KTZ, supra note 12, at 39.
49. Efstathios K. Banakas, Some Thoughts on the Method of Comparative Law: The
Concept of Law Revisited, 1981 ARCHIVES FOR PHIL. L. & SOC. PHIL. 289, 292 (1981).

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cause, as Alan Watson has demonstrated, cause/effect relationships between a transplant and its foreign antecedent are fundamental for studies
in the migration of legal ideas. 50 The general lack of structural-causal
explanations forces functionalists either to reduce the explanatory claims
of their theory or to deny all non-technical attributes of the law, neither
of which they want.
Even in those areas in which functionalism can work, its second premise severely limits its operation by fostering reductionism. 51 The functionalists reluctance to properly establish the comparability of the problem sociologically restricts their comparisons to grand, superficial similarities. Indeed, it is hard to believe that many legal problems are the
same in two societies except on a technical level. To assume the opposite
seemed utter dilettantism to Kohler. 52 The underlying political, moral,
and social values in different systems simply vary too much. Functionalists do not seem to realize this because they generally fail to discuss how
one establishes likeness and sameness as a starting point for comparison. Further, they do not propose a method for finding and evaluating
differences, however small, among like phenomena. Partly as a result
of this, the functional approach is unable to solve the problem of apparently similar social and economic conditions producing radically different legal solutions, or even no solutions at all.
c. Third Premise: Problems Are Solved in a Similar Way
The heuristic principle of the praesumptio similitudinis, finally, is a
further incentive to concentrate uncritically on similarities and thereby
deepen the reductionist tendency of functionalism. It seduces them into
neglecting the cultural-historical specificity of legal systems as long as,
generally, their solutions to problems coincide. The assumption of
similarity works reasonably well within the same cultural sphere. If
comparisons, however, take place between culturally more remote systems, it becomes increasingly pointless, which the existence of institutes
such as ordre public in the field of conflict of laws suggest. 53 Further
exemptions are necessitated by the problem, that there are institutions for
50. Alan Watson, From Legal Transplants to Legal Formants, 43 AM. J. COMP. L.
469, 46970 (1995).
51. From a historical perspective, see WATSON, supra note 40, at 45; from a culturalist perspective, see Vivian Grosswald Curran, Cultural Immersion, Difference and Categories in U.S. Comparative Law, 46 AM. J. COMP. L. 43, 61 (1998); from a critical legal
studies perspective, see Frankenberg, Critical Comparisons, supra note 20, at 436; van
Reenen, supra note 4, at 191.
52. Kohler, supra note 35, at 275.
53. Graziadei, supra note 10, at 102.

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which equivalents are not found in all systems, e.g., polygamous marriages. Some problems, such as marrying a second cousin, pose a problem for some legal systems, but not for others. That is why functionalists
tend to apply the praesumptio only to legal subjects that are relatively
apolitical and unimpressed by moral views or values, 54 such as contract law. But can we really assume that there is such a thing as apolitical law in an age where policy issues such as consumer protection permeate all fields of the law, including the law of contracts? Is it not that
we have to accept that law is nothing else but successful politics?
Finally, the presumption of similarity questionably encourages the
view that legal and extra-legal regulation are essentially the same, as
long as they fulfill the same function. 55 Yet, in legal theory, it makes a
difference whether individuals are free to discover their obligations for
themselves or whether their obligations are imposed by law. Ignoring
this hides a vital issue of comparison: the way legal systems allocate
regulation between law and custom.
2. Operational Problems
a. Pseudo-Factuality
On a non-axiomatic level, functionalism is in deficit, too, by maintaining a factual approach 56 to comparative law, while in fact not doing so.
Functional studies begin by defining a social problem. 57 A social problem, however, is a factual situation plus the value judgment that this
situation causes consequences that need to be remedied. This value
judgment is contingent. The answer to what makes a factual situation a
problem can be different from one legal system to another. It may depend, for example, upon who finds a particular factual situation problematic. It makes a difference whether a particular situation in one legal
system is considered problematic by a lobby group, in another by academics, and in a third by a large majority of the public. Functionalism
does not care for this contingency. Therefore, its claim of neutrality,
which hinges on the claim of being a factual approach, cannot be upheld.
b. Contemporality
Another operational shortcoming of the functionalist method is that it
is nearly exclusively occupied with studying contemporal legal problems
54.
55.
56.
57.

ZWEIGERT & KTZ, supra note 12, at 40.


Id. at 38.
Peters & Schwenke, supra note 5, at 808.
See supra Part II.A.

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(horizontal or synchronous comparisons). 58 It neither creates incentives


to look at how a problem was solved in the past, 59 nor does it care to
compare legal systems or institutions that are remote from each other in
time (vertical or diachronous comparisons). Though difficult and not
universally exercisable, diachronous comparisons are possible as long as
the institutions or legal systems under scrutiny have enough characteristics in common to validate a comparison. 60 Other comparative disciplines, such as comparative politics, make frequent use of such comparisons. 61 Studies like Buckland and McNairs Roman Law and Common
Law elucidate that diachronous comparisons also yield valuable knowledge for lawyers. 62
Not to examine how a particular legal system addressed a certain problem in the past is cumbersome, where this jurisdiction adopted a specific
solution first and opted for another solution later. In such a case, functionalists will often neglect the former solution because it is discontinuous. Even where an institution stands the test of time, the functionalist
will regularly overlook that it may have had additional or alternative
functions in the past. Nearly every institution serves functions at some
time in a given society that have been ignored in other times. It has,
however, the potential to perform each of these functions even if in the
given concrete contemporal case, it does not do so. This potential is important for understanding the significance of a legal institution, which
functionalists will regularly fail to notice.
E. Conclusion
The pragmatically motivated functional method has been a useful
guide for establishing comparative law as a discipline. It still has its virtues and valuable applications today. As a model for all comparative
studies, however, functionalism is no longer a good fit because it is too
limited in its application by its premises and operational problems.
Merely abandoning the praesumptio similtudinis, as arguably its most

58. CONSTANTINESCO, TOME III, supra note 36, at 42.


59. Gerber, supra note 17, at 206.
60. CONSTANTINESCO, TOME II, supra note 40, at 46; Sir Frederick Pollock, The History of Comparative Jurisprudence, 5 J. SOCY COMP. LEGIS. 74, 76 (1903).
61. See, e.g., Joshua B. Forrest, Asynchronic Comparisons: Weak States in PostColonial Africa and Mediaeval Europe, in MATTEI DOGAN & ALI KAZANCIGIL,
COMPARING NATIONS: CONCEPTS, STRATEGIES, SUBSTANCE 260 (1994).
62. W.W. BUCKLAND & ARNOLD D. MCNAIR, ROMAN LAW AND COMMON LAW: A
COMPARISON IN OUTLINE (3d ed. 1965).

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controversial presumption, 63 cannot save the method. The objections to


the remaining presuppositions are too serious.
III. ALTERNATIVE APPROACHES
Towards the end of the twentieth century, the growing dissatisfaction
with functionalism enabled new approaches to comparative law to challenge its claim for methodological dominance. Three of these trends are
worth mentioning: Comparative Law and Economics, Comparative Law
and Culture, and Critical Comparative Law. They shall be examined in
turn to see whether they can present a viable alternative to functionalism.
I will not present historical comparative law as a separate method because the historical dimension of law is, in fact, an integral part of every
meaningful comparative study. 64
A. MatteiComparative Law and Economics
While comparative lawyers increasingly employ disciplines such as
history, anthropology, and sociology, until recently economic theory has
been largely ignored. Only in the mid-1990s did Law and Economics
claim a share in comparative studies. It promises to benefit comparative
research by providing a degree of measurement to its statements: economic efficiency Comparative Law and Economics scholars strive to
distinguish themselves from mainstream law and economics insofar as
they claim a more neutral role for the discipline as an analytical, rather
than a normative tool. 65 This, however, is merely an ill-concealed lip
service. As their studies reveal, in fact, they aim to operate both at the
levels of descriptive and normative analysis. 66
1. Operation
Analytically, Comparative Law and Economics seeks to begin the
comparison from a neutral scale that can be validated by observable
data: economic efficiency. The term efficiency, in its comparative
sense, is defined as whatever legal arrangement they have that we
wish to have because by having it they are better off 67 in terms of
lesser waste, lower transaction costs, better resource allocation, or greater
63. Husa, supra note 7, at 424.
64. ZWEIGERT & KTZ, supra note 12, at 8. See rc, supra note 15, at 6365.
65. UGO MATTEI, COMPARATIVE LAW AND ECONOMICS 7 (1997).
66. Id. at 123; Ugo Mattei & Fabrizio Cafaggi, Comparative Law and Economics, in
1 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND LAW 346, 347 (Peter Newman
ed., 1998).
67. MATTEI, supra note 65, at 145.

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freedom for individuals to interact. 68 Matteis archetypal methodology


begins by building a model of what he hypothesizes is an efficient legal
institution. 69 This blueprint, according to him, needs to be abstracted
from the pool of solutions offered by existing legal systems under the
presumption that all of the relevant empirical data for the assessment of
efficiency are available.
In a second analytical step, law and economics comparatists then compare their model to the real-world alternatives (i.e., substantive rules) of
different legal systems. 70 When faced with departures from the efficient
model, which will frequently be found, they seek to explain why this inefficiency occurs. A proper analysis is very complex because law and
economics comparatists accept that efficiency is context-dependent. 71
Even where market structure and consumer preferences are similar, the
same legal rule may be efficient or inefficient depending on the institutional and cultural background to which it refers. Less efficient solutions
can be justified by offering some non-distributional benefit that outweighs the gains that the efficient solution would have generated. In
judging the overall efficiency of a legal system, the comparatist furthermore has to watch out for institutions that can work as efficiency restoring substitutes, where inefficiency is diagnosed. In this way, comparative
scholars can isolate and evaluate variables that contribute to or detract
from the relative efficiency of the systems under comparison.
The third step of Comparative Law and Economics transcends from the
analytical to the normative level. After having identified and explained
the deviations from the efficient model, the comparatist is supposed to
define the conditions for policy changes in order to get closer to the
model in those instances where the reasons for distance do not appear
justified. 72 Such conditions are determined by the transaction costs of
changing a given historically prefixed routine. For example, while certain aspects of trust law, as developed in the common law tradition, have
efficiency advantages in the case of bankruptcy over their counterparts
available in civil law, the costs of changing the general structure of prop-

68. Dieter Krimphove, Der Einsatz der konomischen Analyse des Rechts als notwendiges Instrument der Europischen Rechtsvergleichung, 39 ZEITSCHRIFT FR
RECHTSVERGLEICHUNG 185, 189 (1998) (F.R.G).
69. MATTEI, supra note 65, at 182; see also JAN SMITS, THE MAKING OF EUROPEAN
PRIVATE LAW: TOWARD A IUS COMMUNE EUROPAEUM AS A MIXED LEGAL SYSTEM 61
(Nicole Kornet trans., Intersentia 2002).
70. MATTEI, supra note 65, at 182.
71. See Krimphove, supra note 68, at 191; Mattei & Cafaggi, supra note 66, at 347.
72. Mattei & Cafaggi, supra note 66, at 347.

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erty rights to accommodate trusts might outweigh the benefits of such an


introduction. 73
As we can see by this example, Comparative Law and Economics focuses on developments in the relationship between legal systems, i.e.,
convergence, divergence, and the occurrence of legal transplants. 74 It
seeks to explain convergence and divergence as a result of competition
between legal systems. Legal systems are believed to function as markets
for the supply of different solutions for a specific problem. 75 If transaction costs were zero, then law would be freely transplantable (free
movement of legal rules) and would evolve naturally toward the most
efficient rule. 76 Legal diversity (transplantation resistance)according to
Comparative Law and Economicsresults from the transaction costs of
tradition, culture, and ideology. 77
2. Development
Law and Economics originated in the late 1950s in the United States,
and dominated the legal discourse there during the 1960s and 70s under
Coase and, later, Posner. 78 Progressively it found its way into other countries. Its appeal at home, however, began to wither when Ugo Mattei
and Dieter Krimphove paved the path for its application to comparative
studies in the 1990s. 79 For a proper evaluation of Comparative Law and
Economics, it is important to note that the intellectual history of this
variant of law and economics is curiously longer than that of its parent.
Technically, Comparative Law and Economics, in its search for the efficient solution of a given problem, is a narrowed and specified version

73. See Henry Hansmann & Ugo Mattei, The Functions of Trust Law: A Comparative
Legal and Economic Analysis, 73 N.Y.U. L. REV. 434, 44566 (1998).
74. MATTEI, supra note 65, at 123; Anthony Ogus, Competition Between National
Legal Systems: A Contribution of Economic Analysis to Comparative Law, 48 INTL &
COMP. L.Q. 405, 40509 (1999); Esin rc, Critical Comparative Law: Considering
Paradoxes for Legal Systems in Transition, 4.1 ELECTRONIC J. COMP. L. 9 (2000), available at http://www.ejcl.org/41/art41-1.html.
75. See William W. Bratton & Joseph McCahery, Regulatory Competition as Regulatory Capture: The Case of Corporate Law in the USA, in INTERNATIONAL REGULATORY
COMPETITION AND COORDINATION 207, (Joseph McCahery et al. eds., 1996); Meinrad
Dreher, Wettbewerb oder Vereinheitlichung der Rechtsordnungen in Europa?, 3
JURISTENZEITUNG 105 (1999) (F.R.G).
76. SMITS, supra note 69, at 69.
77. MATTEI, supra note 65, at 121.
78. See Ejan Mackaay, History of Law and Economics 6580, available at
http://encyclo.findlaw.com/0200book.pdf (last visited Feb. 7, 2007).
79. See, e.g., MATTEI, supra note 65; Krimphove, supra note 68.

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of functionalism. 80 It radicalizes this method by focusing on one particular function only: the rules or institutions efficiency. 81
The second source of inspiration for Comparative Law and Economics
is the work of Gustav Radbruch. It was Radbruch who first maintained
that when comparing two comparanda, this could only be by reference to
a third, constant element. 82 According to Radbruch, this common point
of reference has to be a supra-national legal system, an objective,
higher or natural law (richtiges Recht). For adherents of Comparative Law and Economics, the efficient rule is this higher or natural law.
3. False Trails of Criticism
Naturally, not everybody agrees on the existence of such a kind of
higher law. A frequent reservation against Comparative Law and Economics is that it relies on simplistic presuppositions drawn from neoclassical economics. 83 This criticism is worthwhile, but it only disqualifies
Comparative Law and Economics based on neoclassical models and not
the method as such. The neo-institutional movement in economics allows
for observing the institutional settings of human interaction and their impact on transaction costs. 84 Behavioral Economics employs social sciences to rectify the inaccurate assumptions in traditional Law and Economics models by adopting a more realistic idea of man. 85 Consequently, there are viable alternative theoretical foundations for Comparative Law and Economics.

80. Ewald, Posners Economic Approach, supra note 30, at 383; Peters & Schwenke,
supra note 5, at 808.
81. Gnter Frankenberg, Stranger than Paradise: Identity and Politics in Comparative Law, 1997 UTAH L. REV. 259, 262 (1997) [hereinafter Frankenberg, Stranger than
Paradise].
82. Gustav Radbruch, ber die Methode der Rechtsvergleichung, 2 MONATSSCHRIFT
FR KRIMINALPSYCHOLOGIE UND STRAFRECHTSREFORM 422, 423 (1906) (F.R.G).
83. Catherine A. Rogers, Gullivers Troubled Travels, or the Conundrum of Comparative Law, 67 GEO. WASH. L. REV. 149, 186 (1998); see also Mackaay, supra note 78,
at 86.
84. Mattei & Cafaggi, supra note 66, at 347.
85. See Claire A. Hill, Beyond Mistakes: The Next Wave of Behavioural Law and
Economics, 29 QUEENS L.J. 563 (2004) (Can.); Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1476 (1998); Russell B. Korobkin
& Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption
from Law and Economics, 88 CAL. L. REV. 1051, 105558 (2000). But cf. Tanina Rostain, Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and
Economics Movement, 34 LAW & SOCY REV. 973, 973 (2000).

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4. Real Problems
There are, however, limits to Comparative Law and Economics, which
disqualify it as a central method for comparative studies. The most fundamental objection is thatas its development has shownit is a mere
variant of functionalism. 86 That makes Comparative Law and Economics
vulnerable to the same objections put forth against functionalism in its
broader sense. Furthermore, its focus on efficiency as the sole function of
law invites additional criticism.
Matteis idea of a neutral model as a tertium comparationis is appealing, not because a defined, objective point of reference is regarded as a
logical necessity of comparative methodology as Radbruch (erroneously)
believed, 87 but because it purges the comparative process from preconceptual bias. In order to be neutral and have such a purifying effect, the
comparatum must not be loaded with preconceptions itself. However, it
is doubtful whether that is true for efficiency.
a. Ambiguity
A first problem with this term is its ambiguity. Efficiency can refer to
partial equilibrium solutions, i.e., pursuing an efficient outcome for a
particular problem in a particular market; but it can also mean general
equilibria, i.e., efficient solutions for an entire economic system. 88 The
comparatist is not told which of these scenarios to rely upon when building efficient models. The reason for this might be that both equilibria
are indeterminate within themselves. Efficient solutions in partial equilibrium situations cannot be defined unambiguously for logical reasons
because they are path-dependent 89 and may become inefficient once one
takes into account third parties or collateral effects to other sectors. 90 To
seek general equilibrium efficiencies is technically impracticable for the

86. Brand, supra note 42, at 1087; Michaels, supra note 7, at 108; Peters &
Schwenke, supra note 5, at 809.
87. Cf. Otto Sandrock, ber Sinn und Methode zivilisticher Rechtsvergleichung, 31
ARBEITEN FR RECHTSVERGLEICHUNG 3, at 45 (Ernst von Caemmerer ed., 1966) (F.R.G).
Meanwhile, it is firmly established that two instances can be compared directly without
reference to a third object.
88. Rogers, supra note 83, at 185.
89. Duncan Kennedy, Law-and-Economics from the Perspective of Critical Legal
Studies, in 2 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND LAW, supra note 66, at
465, 471.
90. Mario J. Rizzo, The Mirage of Efficiency, 8 HOFSTRA L. REV. 641, 641 (197980).

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comparatist because of the enormous information requirements that it


would place on him or her. 91
b. Non-Neutrality
Even worse, efficiency as a criterion is not only ambiguous, but also
partisan. Efficiency analysis is essentially a dynamic cost-benefit analysis. It does not look statically at a certain provision and asks whether this
rule is efficient. Instead, it examines collective decisions (e.g., a
change in legal rules) and asks, under the predominant Kaldor-Hicks
test, 92 whether they generate sufficient gains to their beneficiaries so as
to hypothetically compensate the losers and render the latter fully indifferent to the change but still have some gains left over for themselves.
This test contains the seed of non-neutrality in the form of the so-called
offer-asking problem. Kelman was the first to observe that people generally have a greater concern for and attachment to things as they are compared to things as they could be. 93 As a result, people will ask for a
higher price when they have to give up something (asking price) than
what they would be willing to pay when bound to acquire the same good
(offer price). This difference in price matters to efficiency because it renders the determination of the respective gains and losses of winners and
losers dependent on hidden value judgments. The offer-asking problem
even creates room to argue about who is a winner and who is a loser of a
proposed change. At first blush, the application of the offer-asking problem to efficiencys testthat winners must be able to bribe losers
would measure the bribe at its offer price and the loss at its asking
price. 94 Other law and economics scholars, however, have interpreted
win and loss just the other way around. 95 Neither position can be said to
be wrong. The choice to measure win and loss at the offer price or the
asking price is a question of perspective and correspondingly a question
of policy: the winners from change are the losers from no-change. If effi91. Duncan Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33
STAN. L. REV. 387, 395 (1981); Rizzo, supra note 90, at 64142.
92. For the test and the rival Pareto test, see MICHAEL J. TREBILCOCK, THE LIMITS OF
FREEDOM OF CONTRACT 7, 1921 (1993).
93. Mark Kelman, Consumption Theory, Production Theory, and Ideology in the
Coase Theorem, 52 S. CAL. L. REV. 669, 67895 (1979).
94. Thomas C. Heller, The Importance of Normative Decision-Making: The Limitations of Legal Economics as a Basis for a Liberal JurisprudenceAs Illustrated by the
Regulation of Vacation Home Development, 1976 WIS. L. REV. 385, 39596 (1976).
95. Richard S. Markovits, The Causes and Policy Significance of Pareto Resource
Misallocation: A Checklist for Micro-Economic Policy Analysis, 28 STAN. L. REV. 1, 23,
n.4 (1976) (measuring the winners gains at their asking price and the losers losses at
their offer price).

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ciency therefore inevitably involves value judgments, it cannot serve as


the neutral tertium comparationis that Comparative Law and Economics
requires it to be.
Another expression of the inherent dependency of efficiency on value
judgments is the problem of multiple optima. Comparative Law and
Economics suggest an efficient model as comparatum against which to
assess real-world legal institutions. Such a model cannot be built with
reference to efficiency alone. If transaction costs are low, i.e., almost any
agreement that is to the mutual benefit of the parties concerned is made,
any assignment of rights will lead to an efficient outcome. Winners and
losers of a proposed change in the law would always bargain for the efficient solution. 96 This means that there is a set of efficient solutions,
rather than a single efficient outcome. The choice of any of them is a
matter of value judgment unrelated to efficiency. The situation is no different when transaction costs are numerous and/or high. Here, it is the
lawyer-economists task to manipulate entitlements and redistribute units
of factors until the allocation of resources resembles the efficient solution
found in a world with no/low transaction costs. 97 This is impossible to
achieve with reference to efficiency alone, because, as we have just seen,
even in a world with no transaction costs there is no single efficient solution. Therefore, under no circumstances, can law reformers use efficiency alone to support any particular program of rules.
Even proponents of a law and economics approach to comparative law
are reluctantly realizing how political and value-laden efficiency in fact
is. Mattei, for example, complains about a severe American-centric
provincialism in the discipline. 98 Indeed, law and economics scholars
mostly work under the rather uncritical assumption of the American institutional background; they seem to assume that there is, whether by
conscious choice or by social necessity, a strong tendency for the
[American] common law to adopt efficient rules. 99 Mattei tries to tackle
the problem by establishing the context-dependency of efficiency. If efficiency, however, is context-dependent, there is no way to work with it as
a neutral tertium comparationis.

96. DAVID D. FRIEDMAN, LAWS ORDER 39 (2000); Kennedy, supra note 91, at 395,
44142.
97. Kennedy, supra note 91, at 444.
98. MATTEI, supra note 65, at xii, 6970.
99. Id. at 125.

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c. Distortedness
Efficiency is also unsuitable as a scale for comparative studies because
it distorts the perspective of the comparatist in two ways. First, efficiency
is a transient phenomenon. Even slight changes in the economic circumstances invalidate findings because what is considered to be efficient in
todays economic environment might be inefficient in that of tomorrow.
Therefore, efficiency is oriented toward short-term results. While this
might be acceptable in a (reactive) common law jurisdiction, it does not
agree with legal systems based on codification with their higher need for
legal certainty. Secondly, efficiency analysis is purely concerned with
resource allocation. 100 Distributive issues, i.e., all non-efficiency considerations, are ignored or marginalized. Such a focus on an exclusive criterion under which to evaluate laws is a decidedly reductionist view of the
law and its role in society. It breathes new life into Gerbers fear that
functional comparisons of any kind produce particularist knowledge.
Opting for Comparative Law and Economics instead of functionalism,
would therefore change things from bad to worse.
B. LegrandComparative Law as Hermeneutic Exercise
With Comparative Law and Economics apparently unable to overcome
the objections against functionalism, we have to turn our eyes to other
contenders. Since the mid-1990s, conventional comparative law has been
challenged by members of the culturalist movement. 101 Their thinking
orbits around the term legal culture, which means those historically
conditioned, deeply rooted attitudes about the nature of law and about the
proper structure and operation of a legal system that are at large in the
society. 102 From this starting point, culturalists essentially contend that
legal rules are embedded in local dimensions of the law. Each legal culture is a unique, culturally contingent product, which is incommensurable and untranslatable except through a deep understanding of the surrounding social context. Pierre Legrand is the prime proponent of this
movement in comparative law.
100. Paul H. Brietzke, New Wrinkles in Law . . . and Economics, 32 VAL. U. L. REV.
105, 12729 (1998); Peters & Schwenke, supra note 5, at 829.
101. See, e.g., PIERRE LEGRAND, FRAGMENTS ON LAW-AS-CULTURE 2734 (1999). See
generally ERHARD BLANKENBERG ET AL., COMPARING LEGAL CULTURES 1 (David Nelken
ed., 1997) (composing a collection of works by various authors to consider the possibilities and advantages of using comparative work . . . to clarify the meaning and character
of legal culture); J.C. SMITH ET AL., COMPARATIVE LEGAL CULTURES (Csaba Varga ed.,
1992).
102. JOHN H. MERRYMAN & DAVID S. CLARK, COMPARATIVE LAW: WESTERN
EUROPEAN AND LATIN AMERICAN LEGAL SYSTEMS 28 (1978).

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1. Operation
While functionalism is concentrated on finding similarities and convergences, Legrands basic experience is that of plurality and difference.
He argues that comparative law is not a search for function, but a hermeneutic exercise (dmarche hermneutique). 103 Functionalism, according
to his view, was only partially successful in penetrating the faade of
language. What a rule does functionally, he believes, is yet another
layer of the surface appearance of law. The task of the comparatist is to
delve beyond that technical surface and to uncover what the rule signifies
in terms of its political, social, economic, and ideological context.
For Legrand, the specificity of legal traditions and cultures is central.
He sees their structures and values as contained in language, which is not
always translatable, and builds therefore an insurmountable framework
of contingent ways of legal reasoning. 104 Comparative law is about
finding what is significantly different abroad. Accordingly, it can only
be descriptive, not normative. Foreign law may only be used as a tool to
encourage criticism of the presuppositions of ones own tradition, but not
to provide a model for its reform because each legal tradition is requisite
and irreplaceable. Methodologically, the explanation of the deep cultural
and mental structures expressed by legal texts becomes the main aim of
comparative law. This hermeneutic exercise is, in fact, a search for the
cultural, moral, and linguistic relativism of law. How that search is to be
conducted, however, is merely hinted at. 105 After having established a
linguistic framework that at least allows a proper perception of foreign
law, the comparatist has to carefully lift in his or her description the latters cultural veils one by one, paying special attention to decision making structures, i.e., legal actors and the way they interact and reason.
Legrand can only find limited applications for comparative law because of his focus on perspective. He is anti-foundationalist, i.e., rejects the belief that there is a universal truth. 106 Instead, he claims human
knowledge can, at best, be partial in nature and only validated within a
specific context; the comparatist, in other words, cannot escape from his
103. PIERRE LEGRAND, LE DROIT COMPAR [COMPARATIVE LAW] 31 (1999) (Fr.); Pierre Legrand, The Impossibility of Legal Transplants, 4 MAASTRICHT J. EUR. COMP. L.
111, 123 (1997) [hereinafter Legrand, The Impossibility of Legal Transplants]; see
also Husa, supra note 7, at 43942.
104. Legrand, How to Compare Now, supra note 28, at 23435, 240; Legrand, The
Impossibility of Legal Transplants, supra note 103, at 123.
105. Pierre Legrand, Comparer, 48 REVUE INTERNATIONALE DE DROIT COMPAR
[R.I.D.C.] 279, at 285, 293 (1996) (Fr.).
106. Janet E. Ainsworth, Categories and Culture: On the Rectification of Names in
Comparative Law, 82 CORNELL L. REV. 19, 25 (1997).

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or her cultural framework. 107 This belief, that not only law, but also all
knowledge is culturally and historically contingent, poses an immense
methodological hurdle for comparative studies.
2. Development
A look at the roots of Legrands approach provides an explanation.
Historically, it is based on forethinkers, who were biased against comparative law, and philosophically, it is rooted on movements that are
weak in methodology-building.
When Legrand regards legal cultures as unique spiritual creations of
the community, he reaches back to Montesquieu, who proclaimed the
dependency of law on local conditions as early as 1748 with his seminal
De lEsprit des Lois. 108 Legrand can also be seen as an unintentional successor of the German historical school of law that considered law to be
the manifestation of the peoples national spirit (Volksgeist) and
thereby particular to every nationan organic product of society which
has to be watched for and discovered, rather than made or tampered
with. 109 Even though the contribution of its founder, Savigny, to comparative law is underestimated, 110 this school was more than ambivalent
towards comparative legal studies. 111
Theoretically, Legrands works are based on two different schools, culturalism and deconstruction. The banner of culturalism was raised in the
early 1980s by Stuart Hall as a countermovement to structuralism and
universalism. 112 The main objective of culturalism was to allow societies
to be evaluated in their uniqueness and their complex social and political
context. 113 The dark side of this perspective is that societies, like individuals, all of a sudden seemed incommensurable if not incompatible.
107. Legrand, How to Compare Now, supra note 28, at 30809.
108. MONTESQUIEU, THE SPIRIT OF LAWS 10305 (David Wallace Carrithers trans., U.
Cal. Press) (1977).
109. See James Knudson, The Influence of the German Concepts of Volksgeist and
Zeitgeist on the Thought and Jurisprudence of Oliver Wendell Holmes, 11 J. TRANSNATL
L. & POLY 407, 409 (2002); JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN
INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 28
(Stan. U. Press) (2d ed. 1985).
110. Brand, supra note 42, at 1085.
111. Ewald, Comparative Jurisprudence (I), supra note 2, at 201242; Peters &
Schwenke, supra note 5, at 806 n.30.
112. See Stuart Hall, Cultural Studies: Two Paradigms, 2 MEDIA, CULTURE AND SOCY
57 (1980).
113. See JOCHEN HRISCH, THEORIE-APOTHEKE: EINE HANDREICHUNG ZU DEN
HUMANWISSENSCHAFTLICHEN THEORIEN DER LETZTEN FNFZIG JAHRE, EINSCHLIELICH
IHRER RISIKEN UND NEBENWIRKUNGEN 7071 (2004) (F.R.G).

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Accordingly, the diversity of cultures became sacrosanct. Research therefore had to diversify as well, often to such an extent that a fruitful dialogue was hardly viable anymore.
Culturalism found a natural ally in deconstruction, 114 which in turn
stands on the shoulders of hermeneutics. The latter is concerned with
human understanding and the interpretation of texts. Gadamer, one of
Heideggers disciples, first applied hermeneutics to legal texts in order to
understand them as signifiers of something deeper. 115 The French poststructuralist philosopher Derrida, whom Legrand refers to frequently,
also borrowed from Heidegger and transformed his form of textual
analysis (Dekonstruktion) into a tool of destructive criticism. 116 Central to deconstruction is the French neologism diffrance. In simple
terms, this means that rather than seeking commonality, simplicity, and
unifying principles, deconstruction emphasizes difference, complexity,
and non-self-identity. 117 A deconstructive interpretation of law aims to
unveil hidden inconsistencies and biases by demonstrating how a seemingly unitary concept contains different or opposing meanings. According to Derrida, however, deconstruction never condensed to either a
school or a method, but is merely an occurrence within the text itself. 118
3. Problems
The upshot of Legrands method is total incomparability across history and culture. He simply negates the mere existence of things such as
legal transplants 119 or convergence of legal systems. 120 Any crosscultural comparisons are labeled superficial. One wonders whether that
is just over-conscious thinking or, in fact, the expression of an agenda to
pose as many obstacles to the normative use of comparative law as possible. Cultures are, as Legrand admits, not hermetic, closed, or immutable entities. 121 They influence and infiltrate each other (Americanization!), because unlike individuals, they do not have readily determinable
boundaries. If boundaries between cultures are blurry, then those of their
114. See id. at 68.
115. HANS-GEORG GADAMER, WAHRHEIT UND METHODE 252 (4th ed. 1975) (F.R.G).
116. See HERMAN RAPAPORT, HEIDEGGER AND DERRIDA: REFLECTIONS ON TIME AND
LANGUAGE 2223 (1989).
117. J.M. Balkin, Deconstruction, in A COMPANION TO PHILOSOPHY OF LAW AND
LEGAL THEORY 367, 36869 (Dennis Patterson ed., 1996).
118. Id. at 367.
119. Legrand, The Impossibility of Legal Transplants, supra note 103, at 11112.
120. Pierre Legrand, European Legal Systems Are Not Converging, 45 INTL & COMP.
L.Q. 52, 52 (1996); Legrand, How to Compare Now, supra note 28, at 295.
121. Legrand, How to Compare Now, supra note 28, at 238, n.26.

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epistemic and socio-economic background are too. That makes a fruitful


dialogue between members of a different cultural background possible.
Certainly, Legrand and other culturalists have commendably elucidated
shortcomings of functionalist studies in paying due respect to the sociocultural context of law, drawing destructive strength from their philosophical roots. However, this potential might be exhausted. As pointed
out above, functionalists today accept that the comparative study of law
needs to be contextual. Because they also can accommodate this consideration within their theoretical framework, it seems as if all that can be
done with Legrands approach meaningfully, is to deconstruct the ambiguities and indeterminacies within individual comparisons. 122 Otherwise, Legrands comparative thoughts have little to offer for actual research-practice in comparative law. Methodologically, he wants to
contextualize the objects of comparison and thereby capture their essence
as a unique manifestation of the community. This, however, is more a
goal than a method. One cannot avail oneself of the idea that Legrand,
like most of the law-as-culture scholars, is still working on a protomethodological level. He is preoccupied with contemplating the legitimacy and the aims of comparative law. In his Droit compar, for example, Legrand concentrates on philosophic, epistemological problems
besetting the discipline. He devotes no space to the history, accomplishments, or methods of the subject. The question of how to compare now
dawns, but it is still superimposed by the question of why to compare.
It is not unlikely that Legrand will never emerge from this state. His
theoretical sources, culturalism, and deconstruction hardly provide him
with workable tools for method-building.
C. FrankenbergCritical Comparative Law
A similar fate seems to await Guenter Frankenberg, one of the few
scholars associated with Critical Legal Studies who pays closer attention
to questions of comparative methodology.
1. Operation
For Frankenberg, the question of method encompasses not only the
how, but also the why of comparative studies. 123 He negates functionalisms presumptions of the necessity, functionality, and universality
of law and aims to transform conventional comparative law into a tool
for the critique of law by using an analysis of abortion decisions to illus122. Husa, supra note 7, at 44142; Peters & Schwenke, supra note 5, at 812; Riles,
supra note 20, at 248.
123. Frankenberg, Critical Comparisons, supra note 20, at 416, 445.

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trate his approach. This approach divides the comparative process into
three steps. 124 In the first step, the comparatist is required to scrutinize
carefully what happens when the multiple facets of a factual situation are
taken out of their social context and fitted into a legal framework. A second step is to elucidate this legal framework by critically analyzing its
structure (especially the public/private distinctions) and to delve into the
processes of legal decision-making. The latter opens the door to the political dimension of law, which Frankenberg sees primarily as a theoretical instrument for the purpose of gaining, cementing, and justifying the
exercise of power. 125 He thinks that comparatists need to move from traditional conceptions of legal discourse, such as rights and duties, to the
politics of the subject studied. For him that is the only way to insure that
comparative law does not obey hidden political agendas of hegemony
and domination. In a third step, finally, the comparatist has to reintroduce
the socio-cultural context that has been lost by legalizing a problem.
To avoid the bias of functionalism, Frankenberg wants comparatists to
understand their studies as learning experience[s] that require a
greater sensitivity to the relationship between the self and the other, and
tolerance for ambiguity. 126 They are encouraged to avoid concentrating
on similarities and to allow differences, especially in the political context, to emerge. To cope with pre-conceptual bias, Frankenberg wants to
unravel the ties that bind the comparatist to his domestic legal regime.
Comparative research undertaken so far, he believes, has to be reassessed
by taking into account the scholars motives, interests, and perspectives,
i.e., the scholars legal education, exposure to different legal cultures,
networks, etc. 127 Self-criticism as the prime virtue of the researcher is
meant to insure that future comparative law produces valuable knowledge. Only then can the comparatist unearth the sub-structural, often unarticulated, categorizations and silent assumptions of law. 128
2. Development
Frankenbergs insights have two sources of inspiration. First, like Legrand, he is driven by the idea of difference that in Frankenbergs case is
loosely inspired by feminist studies and the philosophical theory of literature. The theme of difference harmonizes well with Frankenbergs
second source, the Critical Legal Studies movement. This rather hetero124. Id. at 45152.
125. Frankenberg, Stranger than Paradise, supra note 81, at 26163; see also Frances
Olsen, The Drama of Comparative Law, 1997 UTAH L. REV. 275, 278 (1997).
126. Frankenberg, Critical Comparisons, supra note 20, at 441.
127. Id. at 443.
128. Id.

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geneous school, whose crystallization point was a conference at the University of Wisconsin-Madison in 1977, applies ideas of Marx, Marcuse,
and Adorno to the study of law. 129 Of central importance is the idea that
legal rules and institutions are tilted towards the preservation of entrenched interests with wealth and power and therefore are biased against
the poor and oppressed, especially the working class, women, and people
of color. Critical Legal Studies flourished in the United States in the
1980s, but its influence began to fade in the early 1990s.
3. Problems
Some scholars sense a thirst for a more aggressive and dynamic comparative law 130 such as Frankenbergs approach. However, his insights
have so far not helped to establish a more convincing methodological
approach to comparative studies than the heavily criticized functionalism. Like Legrand, Frankenberg is good at analyzing weaknesses of conventional comparative studies and at further reducing their reach and explanatory power. In addition, his elaboration on the political dimension
of law and the need for self-reflection provides helpful guidance for the
comparatisteven though it may divert the focus of research from the
comparison of laws to the history, epistemology, and politics of comparative research itself. 131 Again, like Legrand however, Frankenberg
does not muster the strength to come up with a fully developed countertheory to functionalism. His three step approach remains patchworkmainly because the theoretical framework he is working in,
Critical Legal Studies, does not provide the necessary tools for theorizing. It confines its adherents to the critical analysis of pre-existing institutions, rules, and theories. 132 Correspondingly, Frankenberg leaves us in
a kind of Socratian aporia: our belief in functionalism is shattered, but no
replacement is offered.

129. See John Finnis, On the Critical Legal Studies Movement, 30 AM. J.
JURISPRUDENCE 21, 22 (1985); Roberto Mangabeira Unger, The Critical Legal Studies
Movement, 96 HARV. L. REV. 561, 66365 (1983).
130. Husa, supra note 7, at 420.
131. See, e.g., Jorge L. Esquirol, The Fictions of Latin American Law (Part I), 1997
UTAH L. REV. 425 (1997) (providing an example of such with research on Latin American law).
132. Cf. Guyora Binder, Critical Legal Studies, in A COMPANION TO PHILOSOPHY OF
LAW AND LEGAL THEORY 28082 (Dennis Patterson ed., 1996) (explaining Critical Legal
Studies in terms of its critiques of various existing theories).

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4. Conclusion
Parts II and III have drawn a rather gloomy picture of comparative legal methodology as a garden filled with withering or infertile flowers. It
seems that functionalism is still dominant because of a lack of alternatives, not because it is particularly well-suited. Apparently, there is need
for a fresh sapling. But what qualities would it have to bring? The analysis of functionalism has demonstrated negatively that whatever methodology we want to adopt for comparative studies must not work under the
three presumptions that: law answers to social needs; problems are at
least similar across legal systems; and these problems tend to be resolved
in the same way. Positively, Comparative Law and Economics suggested
that model building might be a promising alternativeefficiency is
just not the neutral scale required. Cultural Deconstruction and Critical
Legal Studies, finally, did not offer much methodologically, but provided
at least hints for avoiding pitfalls by emphasizing the need for a contextual approach.
IV. OWN APPROACHCONCEPTUAL COMPARISONS
This Part tries to develop a method for comparative studies that serves
the needs of the comparatist without being subject to the criticism outlined above. Section A is devoted to preliminary observations, section B
outlines the operation of the method, and section C suggests some applications. In sections D and E, I will discuss advantages of the proposed
method and anticipate likely objections to it. As the method uses models
or concepts as comparata, I shall call it Conceptual Comparisons.
Wherever possible, the terminology used in describing my approach is
adapted to the usage in other social sciences that work comparatively
with concepts to enable and foster an interdisciplinary dialogue. To illustrate how Conceptual Comparisons works, I will discuss the second-tier
protection of inventions in Europe as an example.
A. Preliminary Remarks
1. Presuppositions
Conceptual Comparisons rejects the presumptions upon which functionalism works. However, it cannot operate without three presumptions
of its own. Firstly, law, as the object of comparison, is understood as a
normative system that consists of principles, rules, institutions, and other
institutionally defined instruments. 133 The conceptual structure employed
133. A similar presumption is used by Banakas, supra note 49, at 306.

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by legal systems is important in ordering legal understanding and ensuring that like cases are decided alike. Its effects must not be marginalized,
as functionalism does and as culturalists and critical scholars do to an
even greater extent.
Secondly, Conceptual Comparisons acknowledges that impurities in
the comparative act are inevitable, mainly because comparatists cannot
escape the preconceptions of their own legal culture and education.134
However, while it is true that the perspective on law and accordingly the
work of individual scholars are inevitably subjective, the process by
which legal institutions are compared is not necessarily subjective,
too. 135 Conceptual Comparisons shares the conviction of Comparative
Law and Economics that a neutral tertium comparationis as an expurgatory tool is not only desirable, but also constructible. Objectivity is envisaged to derive from combined efforts of comparatists using a common
system of reference for mutual scrutiny and criticism of each others
work. Unlike Comparative Law and Economics, however, Conceptual
Comparisons endeavors to use this reference system purely analytically.
Thirdly, Conceptual Comparisons presumes that it is possible to formulate a neutral reference system in the form of concepts. By concepts, I
mean abstract models derived in an inductive process from specific instances of real-existing law. Culturalists and critical legal scholars, however, believe that all types of categories and classifications are suspicious
because they are culturally contingent. 136 Outsiders are said to be unable
to understand foreign classifications and translate them into their own.
Indeed, domestic categories and classifications vary in different legal
systems, at different times. They are neither universal nor neutral. That,
however, only out-rules real law as a neutral tertium comparationis, but
not purely theoretical, abstract models that dwell in between the existing legal systems.
2. Conceptualisation
Abstract models successfully serve as neutral analytical tools in the
natural sciences. Fortunately, conceptualization is firmly established in
the social sciences, too, 137 and accepted by analytical jurisprudence as

134. See supra Part II.C.3. Cf. Peters & Schwenke, supra note 5, at 821.
135. But cf. Hill, supra note 42, at 104.
136. Curran, supra note 51, at 48; Frankenberg, Stranger than Paradise, supra note 81,
at 267.
137. See KARL ENGISCH, DIE IDEE DER KONKRETISIERUNG IN RECHT UND
RECHTSWISSENSCHAFT UNSERER ZEIT 23839 (1953) (F.R.G); see, e.g., Arthur L. Kalleberg, The Logic of Comparison: A Methodological Note on the Comparative Study of

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crucial to our perception and understanding of law. 138 It is the basic tool
for lawyers to communicate with each other and to transfer knowledge
from one area of the law to another. However, an analogy to the concepts
and categories of the natural sciences is only possible to a limited extent. 139 The latter rely on properties that can be verified empirically. Accordingly, the categories of natural sciences can be construed so that they
are mutually exclusive: an animal is either a vertebrate or an invertebrate.
In social sciences, the properties used for concept construction have their
source in theoretical discourse, rather than in observable matter; concepts
can be cumulative. A particular legal institution can belong to more than
one category at the same time. A compulsory license, for example, can
be classified (by substantive matter) as a limitation of an intellectual
property right or (procedurally) as a defense in an infringement action. 140
That is why concepts in social sciences have to be more fluid, flexible
types, rather than schematic terms. 141 To diminish the lack of observability in law, the comparatist is well advised to scrutinize legal
institutions not in the abstract, but based on factual situations.
Comparative law is not unaware of conceptualization. Classifications
dominate macro-comparisons. 142 In micro-comparisons, models have
been used occasionally in order to give the comparatist some point of
reference, according to which he can position legal phenomena in relation to one another. 143 Moreover, nineteenth century comparative law

Political Systems, 19 WORLD POL. 69 (1966) (discussing the use of conceptual approaches in the study of comparative politics).
138. GEOFFREY SAMUEL, EPISTEMOLOGY AND METHOD IN LAW 217 (2003); Peter Birks,
Equity in the Modern Law: An Exercise in Taxonomy, 26 U. W. AUSTL. L. REV. 1, 35
(1996) (asserting that taxonomy promotes understanding and is essential to ensure
stability and consistency in the law). Explicitly for comparative studies, see HENRY W.
EHRMANN, COMPARATIVE LEGAL CULTURES 1112 (1976); WILLIAM TWINING,
GLOBALISATION AND LEGAL THEORY 190 (2000); Ugo Mattei, Three Patterns of Law:
Taxonomy and Change in the Worlds Legal Systems, 45 AM. J. COMP. L. 5, 6 (1997).
139. SAMUEL, supra note 138, at 25052.
140. Brad Sherman & Lionel Bently, The UKs Forgotten Utility Model: The Utility
Designs Act 1843, 3 INTELL. PROP. Q. 267 (1997).
141. See generally Grofeld, supra note 35, at 331; Hans Wolff, Typen im Recht und in
der Rechtswissenschaft, 5 STUDIUM GENERALE 195, 197 (1952) (F.R.G).
142. For different macro-taxonomies, see ZWEIGERT & KTZ, supra note 12, at 40, 64;
Brand, supra note 42, at 1090; Mattei, supra note 138, at 5.
143. MATTEI, supra note 65, at 147, 179; see, e.g., Leyland, supra note 10, at 22133
(describing and illustrating the model method in comparing changes between the economic systems of Russia and England); Ilse Bechthold, Ziele und Methoden der Rechtsvergleichung zwischen beiden Teilen Deutschlands, 12 RECHT IN OST UND WEST 1, 7
(1968) (F.R.G); Georg Schwarzenberger, Historical Models of International Law: To-

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dreamed of an ideal system, a network of universal archetypes (universalities) that all existing legal system should approximate. 144 Closer
scrutiny of the operation of legal systems and their extra-legal connotations, however, has shattered this dream. Today we accept that there is
no single set of archetypes that can accommodate the plenty of legal
ideas across the globe. 145 Assuming the opposite necessarily leads to bias
and misconception.
3. Overview
Conceptual Comparisons seeks to establish an approach to conceptualization that allows expression of the variety of conceptualizations in
different legal systems. The method draws inspiration from typology
especially typological comparisons 146 comparative methods of other
social sciences, and plant taxonomy. It operates in two phases. In the first
phase (conceptual orientation), the researcher construes certain elements
of legal reality in logically precise, abstract, and unambiguous models
(comparative concepts). In the second phase (systematic comparison),
real-world institutions and rules can be matched and assessed against
these concepts. The ultimate, admittedly Herculean, goal of Conceptual
Comparisons is to establish a comprehensive network of concepts covering all legal institutions from all jurisdictions and to assess how these
different concepts complement each other or conflict.
The two phases of Conceptual Comparisons are two separate comparative processes. Conceptual orientation requiresas we will see
considerable preliminary comparative investigation. The following systematic comparison between the concept and the rules or legal institutions from the chosen legal systems is not only supposed to provide a
ward a Comparative History of International Law, in INTERNATIONAL LAW IN
COMPARATIVE PERSPECTIVE 227, 22750 (William E. Butler ed., 1980).
144. See Raymond Saleilles droit commun idel in R. Saleilles, La Fonction juridique
du Droit compar [The Juridical Function of Comparative Law], in JURISTISCHE
FESTGABE DES AUSLANDES ZU JOSEF KOHLERS 60. GEBURTSTAG 164 (Fritz Berolzheimer
ed., 1909) (Fr.) and douard Lamberts droit commun legislative in DOUARD
LAMBERT, LA FONCTION DU DROIT CIVIL COMPAR [THE FUNCTION OF CIVIL COMPARATIVE
LAW] 922 (1903) (Fr.), which are the most prominent versions of this approach; see also
Kohler, supra note 35, at 275; Radbruch, supra note 82, at 423.
145. See CONSTANTINESCO, TOME II, supra note 40, at 66; GEORGES SAUSER-HALL,
FONCTION ET MTHODE DU DROIT COMPAR [FUNCTION AND METHOD OF COMPARATIVE
LAW] 5464 (1913) (Fr.); WATSON, supra note 40, at 1213; Grofeld, supra note 35, at
337; Michaels, supra note 7, at 10001.
146. See Bechthold, supra note 143, at 7. Critically, see HANS-JOACHIM BARTELS,
METHODE UND GEGENSTAND INTERSYSTEMARER RECHTSVERGLEICHUNG 7577 (1982)
(F.R.G).

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detailed analysis of communalities and differences, but shall also lay


bare the underlying determinants of the legal phenomena under scrutiny,
including their historical and cultural dimensions. The two processes,
however, cannot be conducted strictly one after another. They have to be
mutually adjusted, necessitating the comparatist to shift back and forth in
a hermeneutical circlewriting up the conceptual orientation to verify
and refine it later when he or she has produced the systematic comparison and vice versa. For the sake of simplicity, I will refer, in the following sections, only to the comparison of legal institutions. The comparative process as such applies mutatis mutandis to rules and principles as
well.
B. Operation
The conceptual comparatist begins his or her study by examining a factual situation in a particular legal system. Unlike the functionalist, the
conceptual comparatist disregards, at this stage, to what extent these facts
amount to a social problem. The situation can be hypothetical, but it
should be for reasons of verifiability, preferably one that has arisen in
practice. The research question put to the fact is, which institutions address the facts under scrutiny? Beginning with one legal system, the respective institutions are carved up into their properties, i.e., their structure and consequences according to the methods of the particular legal
system. The merit of this approach is that it honors the dogmatic individuality of the legal systems under scrutiny.
1. First Phase: Conceptual Orientation
After having broken down the initial institution into its components,
the comparative process begins. The main objective of the first phase of
Conceptual Comparisons, the conceptual orientation, is to establish a
standard for comparability in the form of a concept. Conceptualization
renders phenomena comparable by putting them in a common context.
The key question is how to establish a comparative concept in a meaningful wayregardless of whether the comparatist is working with preexisting concepts 147 or is developing new ones. Pre-existing concepts
must never be passively accepted. They have to be reassessed criticallyand potentially reformulatedin the same way the researcher
would have constructed a new concept: the resulting comparative concepts must fulfill six criteria in order to serve as a neutral tertium comparationis:

147. See also Chodosh, supra note 2, at 109193.

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1. They have to be appropriate to the theoretical questions


posed by the comparatist.
2. They must be effective, i.e., address the factual situations
chosen for comparison. Accordingly, concepts must not be
characterized by disorganized or trivial properties.
3. The properties used for concept construction must not be
context-dependent.
4. They have to be named unambiguously.
5. They should be construed so that they vary as little as possible over time.
6. Finally, their construction has to be falsifiable. A concept is
useless when no statistical or other evidence can be obtained
in order to review it.

In order to fulfill these requirements, it is not advisable to design concepts a priori and apply them afterwards in a deductive process to realworld legal institutions. In that case, a concept might be construed too
ideally and lack any real-world application. Political scientists, such as
Theodore Becker for example, once defined the concept of court for a
comparative study abstractly by seven characteristics. 148 Shapiro rightly
criticized this approach because he could hardly find anything real to
subsume under the entirety of these criteria. 149 Accordingly, concepts
have to be construed by abstracting common elements from observed
phenomena in a number of given legal systems. This inductive process
could look like this: the comparatist should apply the initial facts, tested
against the rules of one legal system, to another legal system and determine again the institution(s)/rule(s) that address the situation. After having done this with a number of legal systems, the search for communalities in the properties of the institutions/rules invoked begins. These
communalities form the bones of the comparative concept.
To gain meaningful properties for the construction of the concept, the
abstraction process has to be exercised on two different levels, a qualitative and a quantitative one. This two-fold analysis is necessary to unveil
appropriately the legal strategies of different legal systems to deal with a
particular factual situation. The qualitative analysis of a concept tells
148. THEODORE L. BECKER, COMPARATIVE JUDICIAL POLITICS: THE POLITICAL
FUNCTIONINGS OF COURTS 13 (1970); see also C. Neal Tate, Judicial Institutions in
Cross-National Perspective: Toward Integrating Courts into the Comparative Study of
Politics, in COMPARATIVE JUDICIAL SYSTEMS: CHALLENGING FRONTIERS IN CONCEPTUAL
AND EMPIRICAL ANALYSIS 7, 1213 (John R. Schmidhauser ed., 1987).
149. MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 1 (1981);
see also Chodosh, supra note 2, at 110708.

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which requirements a particular strategy has whereas the quantitative


analysis reveals which factual situations a strategy can address. In this
way, Conceptual Comparisons becomes an analysis of capability. Like
owners of a Swiss Army knife who seldom if ever use the tools of their
knives in their entirety, not all jurisdictions employing a certain strategy
might be aware of which potential is inherent in the tools they use. Only
a comparison with other legal systems that employ similar tools can disclose this potential.
Both the qualitative and the quantitative analysis look at the structure
and the consequences of a given institution or rule. The latters function and history, at this stage, are irrelevant. They are the factors that
render legal institutions context-dependent and therefore cannot be used
in formulating a tertium comparationis. Due respect to them will be paid
in the systematic comparison.
a. Qualitative Analysis
The qualitative analysis establishes the intension of a concept: the key
attributes that define it, delimit the concept from other concepts, and determine membership. It is an empirical search for common, crosssectional qualities in several legal orders. Each concept is characterized
qualitatively by the fact that its members share at least one property that
is not found in another concept. Properties of legal institutions or rules
can be differentiated into typical, defining ones (a, b, . . .) and accompanying properties that are peculiar to individual institutions (, , . . .). For
the construction of concepts, only defining properties are used; accompanying ones are disregarded. A comparative concept established in this
way is analogue to a species in plant taxonomy 150 and to a type in social
scienceswhat Engisch called an average type (Durchschnittstyp), 151
based on the characteristic properties of an average member of a group,
rather than an ideal type (Idealtyp) of the kind Weber regarded as the
basic comparative unit. 152 Ideal types such as the models of presidentialism and parliamentarism, formerly used in comparative public
law, are in decline. 153 Increasingly, too few instances could be found that
150. V.H. HEYWOOD, PLANT TAXONOMY 14 (2d ed. 1976).
151. See ENGISCH, supra note 137, at 24041.
152. This type describes the perfect condition of an institution or rule that is only partially approximated in reality. See NEIL J. SMELSER, COMPARATIVE METHODS IN THE
SOCIAL SCIENCES 116 (1976). Critically on Webers approach, see generally Ahmed A.
White, Max Weber and the Uncertainties of Categorical Comparative Law, in
RETHINKING THE MASTERS OF COMPARATIVE LAW, supra note 17, at 40, 53.
153. Rett R. Ludwikowski, Latin American Hybrid Constitutionalism: The United
States Presidentialism in the Civil Law Melting Pot, 21 B.U. INTL L.J. 29, 3738 (2003).

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were subsumable under these headings to allow a meaningful comparison. The following diagram illustrates the composition of comparative
concepts:
Diagram 1: Properties Used for Concept Formation 154
Properties of a Legal Phenomenon

Defining Properties
Concept:

Second-tier
Protection of
Inventions

Institutions: Gebrauchsmuster a3

b3

c2

a3

b2

c1

Innovation Patent a2

b1

c3

Petty Patent

Accompanying Properties

Characteristics

Idiosyncratics
Indicatives Dissimilars

As shown in Diagram 1, defining properties and accompanying properties should be further differentiated into two sub-categories each. Defining properties can be distinguished into characteristics and indicatives.
Characteristics are compulsory defining properties, i.e., such ones that
in their sum are necessary and sufficient to identify an institution as a
member of the concept. A comparative concept, being a type, should always consist of a multitude of characteristics. 155 This decreases the risk
of choosing a distinguishing property judgmentally, adds depth to the
concept, and enhances its explanatory utility. To find out which properties are characteristics, ideally all legal systems have to be searched for
legal institutions that share characteristics with the one of interest. Mini-

154. The terms defining properties and accompanying properties are taken from
Giovanni Sartori, Guidelines for Concept Analysis, in SOCIAL SCIENCE CONCEPTS: A
SYSTEMATIC ANALYSIS 15, 33 (Giovanni Sartori ed., 1984). These subdivisions are original.
155. John Gerring, What Makes a Concept Good?: A Criterial Framework for Understanding Concept Formation in the Social Sciences, 31 POLITY 357, 380 (1999); Heyde,
Typus, 5 STUDIUM GENERALE 235, 239 (1952) (F.R.G).

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443

mally, all legal systems that are part of the comparative research project
have to be surveyed.
Indicatives, or sometimes differentiating properties, are optional defining properties. They are individually and in their sum not capable of
defining an institution as a member of a specific concept, but they indicate membership because many members of a concept share these properties. To include indicatives in the definition of a concept makes sense
because they illustrate its dynamics. In the case of emerging concepts,
indicatives refer to properties that might become characteristics once the
concept has materialized fully. In the case of aging concepts, they indicate properties that once were characteristics. The latter is important to
tackle the problem of conceptual stretching. 156 This problem refers to the
distortion that occurs when an aging concept does not fit new cases. The
usual result in such a case is that an otherwise useful concept is malformed or abandoned. 157 This rather unwelcome outcome can be avoided
when means are found not to depend on the assumption that members of
a concept share a full set of defining properties. 158 Indicatives are such a
means.
Accompanying characteristics are those that do not serve to distinguish
concepts from one another. They fall into the categories of dissimilars
and idiosyncratics. Idiosyncratics are properties that are unique to a particular institution, but not characteristic enough to distinguish from other
members of the same concept. The consideration doctrine of the common
law, for example, would be such an idiosyncratic property within the
concept of voluntary agreements. 159 Dissimilar properties of a legal
institution have a complement in other members of the same concept.
This complement, however, is of a different kind, but again, not characteristically different. Compulsory licenses, for example, are administered
in some countries by public authorities, in others by courts. This dissimilar difference is not substantial enough to subsume the two systems under different concepts.
i. Defining Properties
To determine defining properties properly and to distinguish them from
accompanying ones is probably the most important operation of the
156. See generally David Collier & James E. Mahon, Jr., Conceptual Stretching
Revisited: Adapting Categories in Comparative Analysis, 87 AM. POL. SCI. REV. 845
(1993) (discussing conceptual stretching within the context of democracy and authoritarianism).
157. Heyde, supra note 155, at 239.
158. Collier & Mahon, supra note 156, at 852.
159. Reitz, supra note 3, at 621.

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method. For practical reasons, only a part of the properties of an institution can be used for the purpose of its classification. A relevant choice
has to be made because the classification will vary depending upon
which element is used as the focal point.
Gerring has recommended two key criteria for good concept formation:
internal coherence and external differentiation. 160 Internal coherence
means that the defining properties should not merely coincide in space
and time, but have an inner relationship to one another. External differentiation means that the defining properties are chosen so that they
clearly define the borders of the concept by delimiting it against other
concepts. The defining properties should not only say what the concept
is, but also what it is not. Consequentially, concepts should not overlap
each other. Though there might be hybrid real-world legal institutions
insofar as they might fall in between two legal concepts, there are no hybrid concepts. That would reduce the utility of each of the concepts and
might increase the danger of the appearance of memberless concepts.
Otherwise, the six criteria set out for the formation of comparative
concepts guide the selection of defining properties. To preserve the validity of a concept, its defining properties must not be of wide variation,
must not be easily modified by extra legal factors, and must not change
readily. 161 Furthermore, to avoid bias, characteristics should be devised
as neutral as possible. Although, this goal will not always be achievable.
Genocide is hard to define without recourse to pejorative attributes and
human rights without valorizing ones. 162 However, characteristics can
at least be named neutrally: the comparatist must not rely on the idiosyncrasies in taxonomy and terminology of any particular jurisdiction because these were created as explicatory mechanisms for particular legal
phenomena. Especially, homonyms in different legal systems present
traps. 163 The conceptual comparatist needs to distinguish carefully between the legal terms he or she finds (which are irrelevant for the comparative process) and the legal institutions they represent (which are the
bricks that he or she wants for the construction of his or her concept).
Characteristics have to represent both the structure and the consequences of the legal institutions that are members of a concept. If either
structure or consequences differ substantially, then the institutions in
question belong to different concepts. Morals crimes (prostitution, dis160. Gerring, supra note 155, at 37376.
161. HEYWOOD, supra note 150, at 33.
162. Gerring, supra note 155, at 385.
163. Sartori, supra note 154, at 3539; WATSON, supra note 40, at 11; BARTELS, supra
note 146, at 92; Otto Kahn-Freund, Comparative Law as an Academic Subject, 82 L.Q.
REV. 50, 5253 (1966); see, e.g., Ainsworth, supra note 94, at 2021.

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CONCEPTUAL COMPARISONS

445

tribution of child pornographic material, etc.) may, for example, fulfill


the structural criteria of statutory sanctions in three different legal systems. 164 In system A, though, the behavior is treated as a misdemeanor,
in system B as a felony, and in system C as a mere infringement of administrative regulations. In this case, the legal institutions of systems A
and B can be attributed to the same comparative concept because the
consequencesthough not identicalare sufficiently similar (both systems grade the factual circumstances as criminal offenses). 165 The legal
institution of system C forms part of a separate concept (administrative
offense).
ii. Gradation
The difference in consequences between legal systems A and B lead to
another feature of Conceptual Comparisons: gradation. Concepts have to
be defined and named in such a broad way that they cover even heterogeneous legal institutions, as long as they share overriding defining
properties. Accordingly, the characteristics employed in concept formation have to be considerably wide. As in the example of morals crimes,
some members of the concept will have more of a characteristic than
others. This varying grade is highlighted in Diagram 1 as superscript
numerals. The higher this number, the more typical is the particular institution. We measure gradation for two reasons. First, it helps concepts to
weather the storm of scholarly debate. As empirical research of psychologists suggests, concepts that are construed as rigid, logically bound
domains defined exclusively by all-or-none criteria are unlikely to maintain their hold on the discourse. This is because scholars naturally disagree upon how well an institution represents a concept or one of its
characteristics. 166 Secondly, gradation has an inherent analytical value. It
allows for singling out institutions that are more central to the concept
than others (prototypes) because they express its characteristics to an
exceptionally pure degree.
b. Quantitative Analysis
In its quantitative analysis, the conceptual orientation looks at the extension of a particular concept, the entities in the world to which it refers.
164. See Richard S. Frase, Main-Streaming Comparative Criminal Justice: How to
Incorporate Comparative and International Concepts and Materials into Basic Criminal
Law and Procedure Courses, 100 W. VA. L. REV. 773, 788 (1998).
165. JOHN CYRIL SMITH & BRIAN HOGAN, CRIMINAL LAW 26 (10th ed. 2002).
166. See Eleanor H. Rosch, Natural Categories, 4 COGNITIVE PSYCHOL. 328, 32850
(1973).

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These entities are the various factual situations that are covered by the
legal institutions that form part of the concept (case lines). The underlying question is, which other factual situation than the one we started with
do the institutions that are members of the concept cover? These factual
situations can be considered the quantitative characteristics of the comparative concept. Again, similar to the qualitative analysis, ideally all
legal systems are browsed for case lines, which members of a certain
concept address. All factual situations discovered in this way form the
quantitative dimension of the concept, though only seldom will a realworld institution cover the full set of situations. In its quantitative dimension, therefore, the comparative concept is a Weberian ideal type, or
moulded type (Ausprgungstypus) in Engischs words, 167 an ideal
model for a group of existing legal institutions in which the determining
qualities of these institutions are represented exceptionally purely. The
reason why the quantitative analysis is looking for an ideal type, as opposed to the real type that the qualitative analysis established, is the formers significance for the capability analysis at which the conceptual
orientation aims. Only an ideal type allows for assessing the relative potential of a particular institution later in the systematic comparison.
In construing the quantitative dimension of the concept, one should
remember the analogy drawn between comparative law and a dictionary. 168 Just as a dictionary is full of obsolete and archaic, unused and
common words, the quantitative dimension of the taxonomic concept is
timeless. It includes all case lines that have been addressed by the concept, past and present. Should more than one institution address one factual situation in a particular legal system, like, for example, an accident
that can give rise to delictual as well as contractual liability, it is quantitatively relevant for all of these institutions.
c. Example: Conceptualization of Second-tier Protection for Inventions
In the following section, I will give an example of how a conceptualization under Conceptual Comparisons might look, and how it might
make comparative studies more meaningful. The example is taken from
the field of intellectual property law. Second-tier protection for inventions (second-tier protection) has become a hotbed for comparatists since
1995 when the European Commission announced its intention to harmonize national laws of the EC Member States in this regard. 169 Second-tier
167. See ENGISCH, supra note 137, at 246.
168. Friedman, supra note 28, at 4950.
169. Commission of the Eur. Communities, Green Paper: The Protection of Utility
Models in the Single Market, COM (1995) 370 final (July 19, 1995). This report has

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CONCEPTUAL COMPARISONS

447

protection is conventionally defined as all forms of intellectual property


that provide protection for minor technical inventions, which do not
comply with the requirements of patentability. 170 Such a kind of intellectual property right is believed to be particularly suited for small and medium-sized enterprises that make modest workshop improvements to existing products and lack the resources and the necessary market information to engage in full-scale patenting. 171
i. Pre-existing Conceptualization
Applying Conceptual Comparisons to second-tier protection is an exercise in re-conceptualization. Comparatists have divided European jurisdictions already into three 172 or four 173 different groups of regimes that
they see as instances of second-tier protection. The criteria used for differentiation, so far, are the extent of subject matter protected and the test
of necessary advance over the prior art. According to this conceptualization, a first group, including Italy, Portugal, and Spain, has retained the
classic utility model regime of the late nineteenth century. Second-tier
protection, here, mainly fills a particular gap in the law of technical design by protecting functional shapes (spatial forms) of hand tools and
similar implements, which are neither covered effectively by patent law
nor by trade secret law. 174 Jurisdictions of this group distinguish secondtier protection from patent protection by lowering the threshold of admisbeen followed by a working paper in 1996; a proposal for a directive in 1997, Commission Proposal for a European Parliament and Council Directive Approximating
the Legal Arrangements for the Protection of Inventions by Utility Model, COM
(1997) 691 final (Dec. 12, 1997), amended by Commission Amended Proposal for a
European Parliament and Council Directive Approximating the Legal Arrangements
for the Protection of Inventions by Utility Model, COM (1999) 309 final /2 (Dec. 7,
1999); and another working paper in 2001, Commission Summary Report of Replies
to the Questionnaire on the Impact of the Community Utility Model with a View to
Updating the Green Paper on Protection by the Utility Model in the Internal Market,
SEC (2001) 1307.
170. MARGARET LLEWELYN, SECOND-TIER PROTECTION: EUROPEAN COMMISSION
GREEN PAPER ON THE PROTECTION OF UTILITY MODELS IN THE SINGLE MARKET 1 (1996);
Jeremy Newton, Towards a European Utility Model, 18 EUR. INTELL. PROP. L. REV. 446,
446 (1996).
171. Opinion of the Economic and Social Committee on the Commissions 1995
Green Paper, O.J. C-174/6, 1.71.10 (1996).
172. Newton, supra note 170, at 446.
173. WILLIAM CORNISH & DAVID LLEWELYN, INTELLECTUAL PROPERTY: PATENTS,
COPYRIGHT, TRADE MARKS AND ALLIED RIGHTS 3-313-32, at 12728 (5th ed. 2003);
LLEWELYN, supra note 170, at 14.
174. J.H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms, 94
COLUM. L. REV. 2432, 245859 (1994).

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sibility compared with the inventive step requirement of patent law on


the one hand, and by confining the protectable subject matter to products in a spatial form on the other hand. A second group, including
Germany, Denmark, and Austria, has moved away from the classic utility model regimes by dropping the spatial form requirement while retaining the soft inventive step standard. A third group of countries, including France, Belgium, and the Netherlands, likewise refrains from the spatial form requirement, but unlike the second group, uses the full inventiveness test of patent law.
In addition to these three groups, some scholars recognize a fourth
group of European jurisdictions, notably the United Kingdom and Luxemburg, where protection for minor inventions allegedly is provided by
functional equivalents to second-tier protection, such as trade secret
law, 175 unregistered design rights, 176 or the lowering of the general inventiveness test in patent law. 177
ii. Mis-conceptualization
This conceptualization of second-tier protectionespecially the inclusion of the fourth groupis devised by scholars working in the functional tradition. 178 True to his or her method, the conceptual comparatist
has to reassess the pre-existing classification critically. Upon his or her
presumption, that the structure of a particular legal institution is important in ordering legal understanding, it will strike him or her as questionable, whether both the third and the fourth group of countries can be subsumed under the heading second-tier protection. The French certificat
dutilit of the third group, for example, runs parallel with the patent
law system with the only difference being that inventions merely get a
short-term protection of six years under a certificat dutilit, which is
granted without a prior search report. 179 Inventions of a lower level of
inventiveness do not receive any particular attention. Accordingly, second-tier protection in France is, in practice, used to a much lesser extent
175. Mark D. Janis, Second-tier Patent Protection, 40 HARV. INTL L.J. 151, 215
(1999).
176. CORNISH & LLEWELYN, supra note 173, 3-23, at 127; Trevor Cook, So-called
Bio-piracy and the Beneficiaries of Protection, 47 MANAGING INTELL. PROP. 3 (1995).
177. Margaret Llewelyn, Proposals for the Introduction of a Community Utility Model
System: A UK Perspective, 2 WEB J. CURRENT LEGAL ISSUES (1995), available at
http://webjcli.ncl.ac.uk/articles2/llewel2.html (last visited Feb. 6, 2007).
178. For a general critique of functionalisms conceptualisation capacities, see C.J.P.
van Laer, The Applicability of Comparative Concepts, 2.2 ELECTRONIC J. COMP. L.
(1998), available at http://www.ecjl.org/22/art22-1.html (last visited Feb. 6, 2007).
179. UMA SUTHERSANEN, DESIGN LAW IN EUROPE 19006 (2000).

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CONCEPTUAL COMPARISONS

449

than in countries of the first two groups. 180 For the conceptualist, therefore, the certificat dutilit is an alternative form of patent protection, 181
rather than a second-tier protection regime.
The conceptual comparatist will also reject subsuming functional
equivalents that supposedly exist in legal systems under the concept of
second-tier protection. Some of these equivalents, such as trade secret
law, are not even equivalent because second-tier protection was explicitly devised in the nineteenth century to compensate their deficits (in the
case of trade secret law deficits in protecting minor inventions). 182 Others, like the unregistered design right, afford short-term protection to
original shapes and configurations. They are nonetheless dissimilar to
second-tier protection in the form of a utility model right because the
kind of protection they grant is different. 183 Most importantly, the unregistered design right does provide its holder with a lower level of exclusive protection 184 than second-tier protection of inventions. A violation
of the registered design will only be recognized by courts when its holder
can prove reproduction by copying, whereas a second-tier protection
regime will always grant exclusive protection regardless of a proof of
copying. Furthermore, the law of unregistered designs works with a different standard for protection (creativity instead of inventiveness)
and does not warrant priority for the inventor because no registration
takes place. Like the protection of minor inventions, within the framework of patent law, by lowering the latters requirements for inventiveness, protection by unregistered design seems to be an alternative form of
protection, rather than an equivalent to second-tier protection. 185

180. For the statistical data accumulated by Jeremy Tunnell, see Jeremy Tunnell, The
International Approach of a Tired Patent System and its Role in Patent Reform in the
United States 17 (2004), available at http://www.wise-intern.org/journal04/WISE2004JeremyTunnellFinalPaper.pdf.
181. See Friedrich-Karl Beier, The Future of Intellectual Property in Europe, 22 INTL
REV. INDUS. PROP. & COPYRIGHT L. 157, 166 (1991).
182. Reichman, supra note 174, at 245859.
183. SUTHERSANEN, supra note 179, at 19046; LLEWELYN, supra note 170, at 8082;
Andrew Parkes, Short-Term Patents in Ireland, 25 INTL REV. INDUS. PROP. & COPYRIGHT
L. 204, 208 (1994).
184. On the various levels of exclusivity in intellectual property law, see Oliver Brand,
Die Ketten des PrometheusGrenzen der Ausschlielichkeit im Immaterialgterrecht, in
JAHRBUCH JUNGER ZIVILRECHTSWISSENSCHAFTLER 2005 77, 7883 (Axel Halfmeier et al.
eds., 2006) (F.R.G).
185. LLEWELYN, supra note 170, at 33.

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iii. Re-conceptualization
Accordingly, the conceptual comparatist has to try to re-conceptualize
second-tier protection. The conceptual comparatist will begin by breaking down legal institutions from jurisdictions, which fall into one of the
uncontroversial first two groups, into their components to abstract the
defining properties that he or she needs to establish the qualitative dimension of the concept second-tier protection. Most likely, the conceptual comparatist will come up with three characteristics. 186 Second-tier
protection covers any institution:
1.

2.

3.

whose requirements for acquiring exclusive protection are


less stringent than those for patents, because the tests of
inventive step and/or non-obviousness are lower or
absent altogether;
whose term of protection is shorter than that for patents
(usually between seven and ten years without the possibility of extension or renewal); and
that is not subject to substantive examination prior to the
grant.

In addition, the conceptual comparatist will find one indicative, showing the rise of a new characteristic of second-tier protection. An increasing number of legal systems that award some form of second-tier protection follow the German lead in affording for the applicant a grace period.
The conceptual comparatists (or his or her predecessor in titles) written
publications or public use within six months before the priority date of
the invention do not constitute prior art. On the other hand, unique features, such as a limitation of the number of claims available under second-tier protection in Australian innovation patent law, 187 will be disregarded as accompanying properties.
Gradation allows us to identify German, Spanish, Danish, and Irish institutions as members of the concept second-tier protection, though the
threshold of novelty is surmounted at a different level. While Danish and
Irish laws apply novelty for second-tier protection at a universal level,
like in patent cases, German examiners take into account a more restricted state of the art (written publications worldwide, but only if they
are in public use within Germany before the priority date of the invention). In Spain, the standard is even more restricted. Here, novelty for
186. A full list of the properties that need to be assessed can be found in Tunnell, supra
note 180, at 15.
187. Janis, supra note 175, at 172.

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CONCEPTUAL COMPARISONS

second-tier protection is determined according to the national state of the


art only. 188
The defining properties, as abstracted above, would enable the conceptual comparatist to approach second-tier protection with a refined definition of the concept: it refers to all registration-based forms of intellectual
property that provide protection for technical inventions with a lower
level of inventiveness without prior examination and under less onerous
conditions than patent law. Its qualitative dimension would accordingly
only encompass the first two groups of the initial conceptualization and
might, in the context of neighboring concepts, look like this:
Diagram 2: Second-Tier Protection Re-conceptualized
Design Law

Second-Tier Protection of Inventions

Patent Law

Unregistered
Design Law

Utility Model
System

Minor Inventions
Protection System

Alternative
Patent System

United Kingdom

Spain
Italy
Portugal

Germany
Austria

France
Belgium

The quantitative dimension of second-tier protectionas abstracted


from the legal institutions that contain at least all of its characteristics
is provided in Diagram 3. The case lines addressed by this concept are
the different instances of protectable subject matter that the second-tier
regimes cover. Diagram 4 shows the quantitative share of the concept
second-tier protection that a real-world institutionthe German Gebrauchsmusterhas. The darker color indicates case lines that German
law does not cover.

188. See F.P. Goebel, Schutzwrdigkeit kleiner Erfindungen in Europadie


materiellen Schutzvoraussetzungen fr Gebrauchsmuster in den nationalen Gesetzen und
dem EU-Richtlinienvorschlag, in GEWERBLICHER RECHTSSCHUTZ UND URHEBERRECHT
916, 91920 (2001) (F.R.G).

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Diagram 3: Quantitative Dimension of the Concept 189
The Concept of "Second Tier Protection for Inventions"

Products in Spatial
Form
Other Products
Improvements
Substances
Methods
Processes
Software
Biotechnological
Inventions

Diagram 4: Quantitative Dimension of a Legal Institution

Second Tier Protection for Inventions in Germany "Gerrauchsmuster"

Products in Spatial
Form
Other Products
Improvements
Substances
Methods
Processes
Software
Biotechnological
Inventions

189. For an overview of the subject matter covered by second-tier protection, see J.W.
BAXTER, WORLD PATENT LAW AND PRACTICE, 1.10 (2d ed. 1973).

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CONCEPTUAL COMPARISONS

453

2. Second Phase: Systematic Comparison


We have now seen how a conceptualization in phase one of Conceptual
Comparisons might look. In the second phase, the systematic comparison, the concept is utilized by comparing it to real-world institutions. The
aim is to determine and explain the extent to which these institutions
conform to the concept or deviate from it and how they deviate from one
another. The systematic comparison has three stages. As with the two
phases of the comparative study themselves, these three stages of the
second phase are not always distinctly separated from each other, nor are
they always dealt with in the same order: they may be intermingled in the
same discussion. The three stages are all analytical in nature. Comparatists will disagree, as discussed in Part III, upon whether it is permissible
to exploit the knowledge derived from these stages normatively. Therefore, this optional fourth stage of the systematic comparison is left out of
the picture here.
a. Descriptive Stage
The first stage describes the legal phenomena under scrutiny. A proper
description has to be objective, i.e., free from critical evaluation, as well
as comprehensive. The latter requires the comparatist to examine the
comparanda from at least four different perspectives. It is crucial to begin with an internal description of the legal institution that uncovers its
precise construction and consequences because this shows whether the
material used for construing the defining properties of the concept has
been assessed properly. The internal description has to take into account
all sources of law that the legal system under comparison regards as
such, including the written and unwritten authoritative material as well as
affirming and derogative usage. 190 These sources have to be presented as
reflected in the intentions and procedure of the legislature, the jurisprudence of the courts, and the position of the doctrine. Additionally, it
might be helpful to analyze whether the latter is divided and whether it is
concordant or discordant with judicial positions.
The second perspective is the conceptual one. In describing the legal
institutions, the comparatist must make clear how they relate to the concept established in phase one of the comparative process. Qualitatively,
the comparatist has to demonstrate that the institution shows the defining
properties of the concept. Quantitatively, it has to become clear which
factual situations of the ideal set contained in the concept that the realworld institutions address.
190. See ZWEIGERT & KTZ, supra note 12, at 3536.

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The third perspectivethe systematic onewill place the topic under


study in the context of the entire legal system, for the same institution
may be central for one legal system and of only marginal relevance for
another. 191 The systematic description will ask, furthermore, how an institution conforms to general principles, and whether it depends on rules
or institutions in other areas of the law such as procedural rules, constitutional provisions, or the requirements of supra-national law (e.g., EC directives).
The fourth perspective, finally, is meta-legal. It requires a description
of the socio-economic factors of the systems in question; their policy
considerations; their philosophical premises, such as the roll of law; and
their social values. This perspective is extremely important for comparisons, which, like Conceptual Comparisons, are based on typology. If the
socio-economic context of the comparanda is left unexamined, then
variations in the level of power that they confer (effective law versus
symbolic law) remain hidden, which might impair the comparative process. 192 The meta-legal perspective also seeks to identify the actors that
have played a role in shaping the objects of comparison because law
must be understood as a consequence of political decisions and power
structures. 193
b. Identification Stage
The second stage identifies the differences and similarities between the
systems under comparison (identification stage). At this stage, the comparatist has to establish the extent to which the respective institutions
deviate from the concept and from one another. In determining the deviation from the concept, the question of gradation has to be addressed. Furthermore, the accompanying properties of particular institutions have to
be brought out and distinguished from the defining ones that place them
within the concept.

191. M. Schmitthoff, The Science of Comparative Law, 7 CAMBRIDGE L.J. 94, 9798
(1941). For the necessity to pay due attention to the dogmatic context, see Kischel, supra
note 13, at 1820.
192. See BARTELS, supra note 146, at 77; von Senger, Von der Vergleichung des
Rechts zur Vergleichung der Gesellschaftsfhrung, 47 ZEITSCHRIFT FR
RECHTSVERGLEICHUNG 43, 62 (2006) (F.R.G); Kischel, supra note 13, at 21.
193. David Kennedy, New Approaches to Comparative Law: Comparativism and International Governance, 1997 UTAH L. REV. 546, 60614, 62229 (1997); Olsen, supra
note 125, at 275; see, e.g., Jennifer Widner, Comparative Politics and Comparative Law,
46 AM. J. COMP. L. 739 (1998) (utilizing such a perspective in reflecting on the problems
of developing comparative law research).

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c. Explanatory Stage
The third stage accounts for divergences and resemblancesespecially
with regard to the conceptand can therefore be called the explanatory
stage. Historical analysis, functional analysis, and actor analysis exercise especially strong explanatory power. Historical analysis puts institutions to a diachronic test by revealing whether they are genuine or borrowed from another legal system: legal institutions may be similar for
three different reasons. They may have common ancestry, i.e., derive
from the same (now discontinuous) legal institution in the past (e.g.,
Roman law), they may have developed in parallel, or they may have
converged. Parallel development and convergence can be distinguished
by the fact that in the former case, legal institutions developed similar
features independently, while in the latter case, they did so through direct
contact or through mediation of a third legal institution. The variation of
legal institutions, on the other hand, can be explained with regard to three
other factors. The extra-legal environment might have modified them in
a different way or they might have diverged either through the influence
of a third legal system or due to innovative doctrinal reconstruction in the
domestic law.
Alongside historical inquiry, functional analysis can be used at the explanatory stage. Here, this sort of analysis is valid because it is only used
as a means of differentiating legal institutions from one another with regard to an abstract concept that has no particular function because of the
way its characteristics are defined. Neither similarity nor difference in
the function of the institutions under comparison is presupposed. Their
function shall be determined exclusively in their respective domestic
contexts. Deviations from the concept can be caused by the fact that the
institutions might address different cases or that the cases addressed are
problematic to a different extent in diverse legal systems. As part of a
functional explanation, hidden rules, such as the political norms of the
qian guize in China, 194 can be detected and economic considerations can
be put forward as well. Economic issues, however, again have to be analyzed strictly contextually. Otherwise, the problem of multiple optima
might rear its troublesome head again, as we can see beautifully in our
example of second-tier protection. Here, economic analysis in Germany, 195 Australia, 196 and the United States 197 have recommended rather
194. See von Senger, supra note 192, at 5658.
195. See LLEWELYN, supra note 170, at 5072; Michael Kern, Towards a European
Utility Model Law, 25 INTL REV. INDUS. PROP. & COPYRIGHT L. 627, 62829 (1994).
196. See AUSTRALIAN ADVISORY COUNCIL ON INTELLECTUAL PROPERTY, A REVIEW OF
THE PETTY PATENT SYSTEM, ch. 5 (1995).

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different arrangements for second-tier protection, arguably because the


respective local needs, perceptions, and institutional settings are different, too.
Actor analysis, finally, takes into account that legal processes are complex configurations of institutional and non-institutional legal actors. 198
They give legal institutions their characteristic shape by applying and
interpreting the standards of legal norms and doctrine. In this respect, the
occurrence of pre-eminent lawgivers (berragende Nomostheten) demands particular attention. A pre-eminent lawgiver is a person who coins
institutional actions (i.e., court decisions or enactments) to such an extent
that these actions appear his or her own, rather than actions of the institution in which he or she is embedded. 199 At the same time, the influence
of actors cannot be measured in terms of their impact on positive law
only. 200 Otherwise, the influence of legal scholars like Rheinstein,
Ehrenzweig, or Kelsen, who never directly influenced enactments or
court decisions, would be overlooked. 201 As the influence of a particular
actor is determined by his role within a given legal culture, the central
questions to be addressed by the comparatist regarding actor analysis are:
Who is responsible for the development of the law? Which interest
groups support change or adherence to the law? Are there changes in the
institutional structure of an actor (affirmative action, regime change,
etc.)? What are the motives and perspectives of these groups? Which are
their formal and informal roles in a given society and how do they interact with other actors? In our example of second-tier protection, answering questions such as these can highlight, for example, why some legal
systems have not adopted such a form of intellectual property: in the
Netherlands, local industry lobby groups prevented an enactment of second-tier protection because they feared its enactment might favor foreign
competitors. 202

197. Janis, supra, note 175, at 18990.


198. BELL, supra note 40, at 1213, 19; Chodosh, supra note 2, at 1112.
199. On pre-eminent lawgivers, see Oliver Brand, Language as a Barrier to Comparative Law (unpublished article) (on file with author).
200. Cf. Edward Rubin as criticized by Meir Dan-Cohen, Listeners and Eavesdroppers: Substantive Legal Theory and Its Audience, 63 COLO. L. REV. 569 (1992). Hermann
Kantorowicz gives a good methodological example. He argued that law is shaped not
only by judicial actions, but also by scholarship. See, e.g., Hermann Kantorowicz, Some
Rationalism About Realism, 43 YALE L.J. 1240 (1933).
201. Ugo Mattei, Why the Wind Changed: Intellectual Leadership in Western Law, 42
AM. J. COMP. L. 195, 208 (1994).
202. Dick van Engelen, The Misappropriation Doctrine in the Netherlands, 22 INTL
REV. INDUS. PROP. & COPYRIGHT L. 11, 21 (1991). For similar influences in nineteenth

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d. Contextuality
In all three stages, the legal institutions under scrutiny must be viewed
in the socio-economic and cultural context in which they thrive. This
context is vital for a proper understanding and accurate delineation of the
law at the descriptive stage, for the precise identification of differences
and similarities at the identification stage, and for a valid evaluation at
the explanatory stage as well. As established above in the critique of
functionalism, a mere study of texts and formal rules will give an incomplete and distorted picture. Some socio-economic and cultural background is needed in every comparative study. The amount of contextual
discussion necessary depends on the socio-cultural proximity of the legal
systems chosen for comparison. 203 The greater the proximity between the
comparanda, the less detail of the general social context needs to be examined. In intra-cultural comparisonse.g., comparing German and
Austrian lawthe socio-cultural context may be restricted to the immediately relevant aspects of the social and economic environment. In
comparisons of legal systems that belong to distinct societies (crosscultural comparisons)e.g., English law and Maori lawa detailed discussion of the social structure and organization is essential to properly
assess factors such as social differentiation. To highlight the socioeconomic background, methods of sociological research might have to be
employed, such as statistical evidence, 204 questionnaires, and interviews. 205 Documents from legal practice such as standard business terms,
register forms, etc., furthermore help to fill the abstract rules of foreign
law with life.
C. Applications
Conceptual Comparisons aims to permit comparisons among the entire
range of legal systems, even between systems from dissimilar socioeconomic environments and between radically different cultures. Naturally, however, the same set of legal systems is not equally relevant for
century Britain, see Brad Sherman & Lionel Bently, The United Kingdoms Forgotten
Utility Model: The Utility Designs Act 1843, 3 INTELL. PROP. Q. 265, 27375 (1997).
203. W.J. Kamba, Comparative Law: A Theoretical Framework, 23 INTL & COMP.
L.Q. 485, 515 (1974).
204. Recently, comparative expertise in this respect is made available under the heading of numercial comparative law. See Mathias M. Siems, Numerical Comparative
Law: Do We Need Statistical Evidence in Law in Order to Reduce Complexity?, 13
CARDOZO J. INTL & COMP. L. 521 (2005). Critically, see Detlev F. Vagts, Comparative
Company LawThe New Wave, in FESTSCHRIFT FR JEAN NICOLAS DRUEY 595, 59899
(Rainer J. Schweitzer et al. eds., 2002) (F.R.G).
205. See Drobnig, supra note 30, at 49903.

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every comparative study. The question of which legal systems the comparatist should choose to compare must be answered on a case-by-case
basis. The concentration on parent systems 206 is not even good as a
working rule. Rather, the choice of the comparanda depends on the kind
of study that the comparatist wants to undertake. In the following sections, the range of studies that Conceptual Comparisons allows is explored. In the diagrams, included for reasons of clearness, squares symbolize concepts, ellipses stand for individual legal institutions, and arrows indicate the comparative studies that may be undertaken.
1. Deviant Case Studies
The first interesting application of
Conceptual Comparisons is the deviant
case study. After having established a
concept, this kind of study takes one of
the ordinary members of the concept
and compares it to another member of
the same concept that possesses either a
remarkable quantitative dimensionbe
it exceptionally large or smallor a notable number of accompanying
properties (deviant case). Deviant case studies make use of the critical
potential of comparative law. They reveal the tolerance of a concept towards the moral and political values imposed by legal systems upon the
form and substance of legal institutions. In the example of second-tier
protection, Austrian law would qualify as a deviant case within the concept because, quantitatively, it is the only jurisdiction that uses this kind
of intellectual property right to provide protection for software. 207
2. Contrastive Comparisons
Like deviant case studies, contrastive
comparisons aim to highlight the diversity of law. There are two versions of
this application. Intra-conceptual contrastive comparisons concentrate on
polar types, members of the same
concept that differ maximally either in
illustrative and accompanying properties
or in the underlying socio-economic implications. These comparisons
206. ZWEIGERT & KTZ, supra note 12, at 41.
207. [Utility Model Act] Bundesgesetzblatt [BGBl] No. 211/1994, Part I, 112; see
Goebel, supra note 188, at 917. But cf. Janis, supra note 175, at 190.

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use concepts as benchmarks against which to establish the unique features of the real-world systems under scrutiny. Their heuristic value is to
map the width of the concepts. In our example of second-tier protection,
the comparison of a (narrow) classical utility model system, such as the
Spanish one, and a much wider second-tier system, such as the Irish
petty patent or the Austrian Gebrauchsmuster that protect any patentable subject-matter, would be an instance worthy of a contrastive
study. Intra-conceptual contrastive comparisons also allow for comparisons in highly value-laden areas of law. One might compare, for example, the approach of the antipodes of the Muslim world, Indonesia, 208
and Morocco, 209 towards the discrimination of women under the common roof of the sharia principles.
Inter-conceptual comparisons juxtapose a member of one concept with
a member of another concept, while both institutions address a similar set
of factual situations. To compare members of different concepts is valid
because the applicability of concepts as a tertium comparationis does not
depend on the actual presence or absence of the relevant characteristics
in the legal institutions compared, but rather on the capability of these
institutions to exhibit that characteristic. 210 That is the reason why it is
possible to apply foreign concepts to ones own legal system, as it has
been done, for example, in a study applying American theories of evidence to Dutch criminal justice. 211 A contrastive comparison with an institution outside the concept of second-tier protection would probably
ask how the United States or the United Kingdom addresses the case
lines covered by second-tier protection, highlighting problems with substituting second-tier protection with trade secret law and a reduced inventiveness standard in patent law.

208. See, e.g., SHARIA AND POLITICS IN MODERN INDONESIA 123 (Arskal Salim &
Azyumardi Azra eds., 2003).
209. See, e.g., Bharathi Anandhi Venkatraman, Note, Islamic States and the United
Nations Convention on the Eliminination of All Forms of Discrimination Against Women:
Are the Sharia and the Convention Compatible?, 44 AM. U. L. REV. 1949, 197781
(1995).
210. E. Gene DeFelice, Comparison Misconceived, 13 COMP. POL. 119, 123 (1980).
211. See., e.g., WILLEM A. WAGENAAR, PETER J. VAN KOPPEN, & HANS F.M. CROMBAG,
ANCHORED NARRATIVES: THE PSYCHOLOGY OF CRIMINAL EVIDENCE (1993).

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3. Developmental and Hybrid Studies


Conceptual Comparisons can also
analyze developments in the relationships between legal systems. Such
an analysis has to be exercised in two
steps. In a first step, the comparatist has
to explore tendencies of convergence or
divergence between legal systems (in
terms of real differences). In a second
step, a comparative developmental study would explain and evaluate
such tendencies: Why do systems converge or diverge? Is convergence
desirable or undesirable? In an increasingly integrated world, convergence may, for example, be required under international (e.g., World
Trade Organization [WTO]) or supra-national (e.g., European Union
[EU]) law. Consequently, hybrid legal institutions at the intersections of comparative concepts may emerge. The existence of hybrids
can also be explained by the fact that characteristics cannot always be
formulated in a binary code: real-world legal institutions do not fit into
characteristics in a yes-or-no way, or a more-or-less way, if you take
gradation into account. They might fit in only partially, 212 as the
French certificat dutilit does, for example, in the system of secondtier protection as well as in the system of patent protection.
4. Taxonomic Comparisons
A fourth possible application for Conceptual Comparisons is taxonomic comparison. Concepts can be differentiated into equivalent, horizontal categories and hierarchical, vertical ones. The latter can be organized in the form of taxonomies similar to the botanical ordering of genus,
species, and sub-species. A taxonomy of conceptswhile certainly not
an end in itselfmight enhance the heuristic value of comparative law as
an organizational discipline. 213 It simplifies and systematizes data collection and makes intra- and inter-group comparisons easier by highlighting
the interrelation of concepts.
Concepts, which share the most characters in common, can be placed
into larger, more inclusive classes (genera); these in turn are assembled
into even more inclusive groups called families as outlined in Diagram 5.
The concept, agreement of sale, for example, belongs to the genus
voluntary agreements that forms part of the family obligations. Each
212. See generally Tate, supra note 148, at 1920 (listing examples).
213. Kokkini-Iatridou, supra note 40, at 151. But see Sandrock, supra note 87, at 65.

2007]

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461

vertical class can be understood as a different level of abstraction. We


climb the ladder of abstraction by reducing (in number) the characteristics of a concept [and] descend a ladder . . . by augmenting (in number)
[those] characteristics. 214 It is advisable, however, to climb the ladder of
abstraction with care. A concept described by only very few characteristics can become analytically insignificant. 215 When the conceptual comparatist climbs the ladder of abstraction, he or she has to be careful. The
quantity of objects that a concept refers to says nothing about its analytical utility. Therefore, even concepts that have only one member can be
built (monotypic concepts). 216 That might be useful and necessary for
including very remote legal systems in a comparative study.
Diagram 5: Taxonomic Organization of Concepts 217

Family
Genus
Concept

Section

Genus (monotypic)

At this point, it should be reiterated that the concepts, which Conceptual Comparisons forms, are not necessarily alternative, i.e., mutually
exclusive. They can also be cumulative, i.e., concepts in which institutions can be classed that also belong to another category. 218 This is unproblematic as long as comparatists are aware that the taxonomies they
create with Conceptual Comparisons constitute a number of interrelated
taxonomic trees that comparatively describe the law, and not a single,
unitary one.
214.
215.
216.
217.
218.

Sartori, supra note 154, at 44.


BARTELS, supra note 146, at 76.
Cf. SMELSER, supra note 152, at 176.
The diagram is an adaptation of HEYWOOD, supra note 150, at 14.
See supra Part IV.B.1.b.

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BROOK. J. INTL L.
5. Prototype Studies

Concepts will be frequently derived


from a specific system of geopolitical
and economic significance to the comparatists audience. That might lead to
an implicit equivalence of a parochial
prototype with the concept. 219 It might
be interesting to compare the prototype
with other members of the concept. This
could elucidate the way in which the concept and its members develop.
Prototype studies could reveal, for example, that concepts are becoming
more condensed because of internal tendencies for further convergence.
As it might happen in the case of second-tier protection, the intended
harmonization of the law of EC Member States is closely based on the
prototypical German approach. 220 On the other hand, it might be
shown that concepts are becoming weaker because benchmark jurisdictions that have provided models for shaping a particular area of the law
lose their appeal, as it now happens with German company law. 221
6. Diachronous Comparisons
A sixth application for Conceptual
Comparisons is the diachronous study.
These studies involve either the comparison of subsequent legal institutions
in one legal system that is a member of
a specific concept, or the comparison of
different members of a concept that existed at different periods of time. Such
comparisons establish the historical connections within a concept and
allow the study of legal development. In the case of second-tier protection, it might be interesting, for example, to compare the German approach prior to 1990, when it still had a spatial form requirement, with
the present Spanish or Italian law, which currently maintains this requirement.

219. Chodosh, supra note 2, at 1107.


220. SUTHERSANEN, supra note 179, at 19048.
221. See REINIER R. KRAAKMAN ET AL., THE ANATOMY
COMPARATIVE AND FUNCTIONAL APPROACH 7594 (2003).

OF

CORPORATE LAW: A

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7. Case Studies
Case studies, the final application of
Conceptual Comparisons, are concentrated on one particular factual situation.
In a particular case, we might ask for
example: How do different legal systems deal with minor improvements in
the manufacture of hand-tools? From
that starting point, the comparatist has to
find out which legal institutions are invoked by the legal systems that he
or she wants to study to deal with the situation. These institutions, in
turn, have to be grouped under the various concepts to which they belong. Only then is a direct comparison between the different legal institutions possible.
D. Virtues of the Method
The applications of Conceptual Comparisons indicate some advantages
of the method. First, it allows for studies not viable under functionalism
or any of the other methods discussed in Part III. Prototype studies, taxonomic comparisons, and diachronous comparisons, are unique to Conceptual Comparisons. This method also responds to a rising call for expanding the scope of comparative law to purely domestic contexts (onecountry studies). 222 In areas where legal transplants are frequent, as in
company law, transplanted and domestic institutions often co-exist and
compete with each other in the same legal system. Conceptual Comparisons might provide a proper yardstick to analyze such situations because
it does not require comparanda from different legal systems to be operational.
Secondly, over time, Conceptual Comparisons will establish a common
reference system in the form of the concepts that it develops. Thereby, it
might serve as a research cycle that allows a more fruitful dialogue of
scholars working in different traditions. Critical legal scholars and culturalists can continue their work within the framework of deviant case
studies and contrastive comparisons. They can, furthermore, monitor
whether the explanatory stage of phase II pays due respect to the extralegal context of the rules examined. Functionalistsin the broader and
the narrower sensecan also carry on contributing to comparative studies. Conceptual Comparisons probably makes their insights even more
222. Chodosh, supra note 2, at 1084.

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valuable. It frees them from objections against the premises upon which
they work by acknowledging that the function of law is contextdependent and by consequently limiting the role of functionalism to that
of an explanatory tool in phase II of the comparative process.
Thirdly, Conceptual Comparisons might make the application of
knowledge derived from comparative studies more likely. The works of
comparative lawyers, especially those from civil law jurisdictions, are
often disregarded by their more dogmatically oriented colleagues because of their functional or otherwise un-dogmatic approach. Conceptual
Comparisons has the capacity to alter this by providing a framework that
pays more attention to the constructional details of the law and might
therefore dissolve or mitigate the antagonism between comparatists and
dogmatic scholars.
Fourthly, Conceptual Comparisons makes the choice of legal systems
for comparison more transparent and rational. The process advocated so
far by functionalism is dependent on implicit choices necessitated by the
functionalists general avoidance to discuss questions of likeness and
on the operational limitations that the three presuppositions of functionalism force upon the comparatist. In contrast, the conceptualization undertaken in phase I of Conceptual Comparisons provides a criterion that
requires the comparatist to make an explicit and rational choice. As the
sample applications sketched above have shown, the comparatist will
have to limit research to those legal systems that fit the kind of study he
or she wants to undertake. That can still be radically different cultures
in the case of a contrastive comparison or members of the same concept
in a prototype or deviant case study.
Finally, Conceptual Comparisons can assist the study of legal transplants in numerous ways. Conceptualization has predictive value. 223 It
can predict legal transplants and legal change by answering questions
such as: Why and how do legal systems change? Which factors are more
likely to resist legal change by imitation? How does the structure of a
recipient legal system affect and modify a received legal institution? The
conceptualization undertaken in phase I of the method also helps to understand the transplanting process itself better. It provides a degree of
measurement against which it can be established, whether legal change
takes place in the form of a gradual process of cross-fertilisation 224 or
whether entire tracts of law move from one system to another. Thus,

223. HEYWOOD, supra note 150, at 23; Mattei, supra note 138, at 67.
224. This term is used by John Bell, Mechanisms for Cross-fertilisation of Administrative Law in Europe, in NEW DIRECTIONS IN EUROPEAN PUBLIC LAW 147 (Jack Beatson &
Takis Tridimas eds., 1998).

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regulative competition between legal systems becomes more transparent.


Conceptual Comparisons furthermore allows us to distinguish between
two kinds of transplants: intra- and inter-conceptual transplants. The
former are more likely to happen and more likely to be successful because the receiving and the donating legal system can rely on a sufficiently similar structure in addressing a certain factual situation.
E. Possible Objections to the Method
In conclusion of this study, there are four likely objections to Conceptual Comparisons that I would like to pre-empt.
First, it might be said that Conceptual Comparisons has little value for
practical comparative law. 225 Practitioners, especially judges, will not
base their decisions on artificial average types or ideal types like the concepts established by the proposed method. That is certainly true. It is
maintained, however, that practically applicable comparative law is an
illusion anyway. The restraints on time and resourcesespecially of
courtsare too pressing to allow meaningful comparative work on a
broad scale. 226 To make comparative law practicably relevant, it has to
be filtered through the lenses of comparative scholarship that in turn
can be consulted by practitioners. 227 Conceptual Comparisons, in this
regard, makes sure that the distorting effect of the lenses is mineralized.
Secondly, comparatists might fear that Conceptual Comparisons leads
them back into the formalism of nineteenth century comparative law and
Saleilles dream of a droit commun idel. That fear is unfounded. Conceptual Comparisons acknowledges that social facts are so diverse that
they do not lend themselves to a single scheme of concepts. Respectively, it does not claim that there is a single set of mutually exclusive
concepts under which all legal institutions of all legal systems can be
subsumed. As shown in the description of taxonomic comparisons, the
proposed method rather sees concepts on a horizontal level as competing

225. See Sandrock, supra note 87, at 48.


226. See generally Hein Ktz, Der Bundesgerichtshof und die Rechtsvergleichung, in
50 JAHRE BUNDESGERICHTSHOF: FESTGABE AUS DER WISSENSCHAFT 825 (Claus-Wilhelm
Canaris et al. eds., 2000) (F.R.G); see also T. Koopmans, Comparative Law and the
Courts, 45 INTL & COMP. L.Q. 545, 54850 (1996).
227. See generally K.P. Berger, Auf dem Weg zu einem Europischen Gemeinrecht der
Methode, 9 ZEITSCHRIFT FR EUROPISCHES PRIVATRECHT 4, 12 (2001) (F.R.G)
(evaluating methodologies and legitimization of the use of comparative law in Europe to
Europize general law for its adoption and use by practicing jurists); see also Guy
Canivet, The Practice of Comparative Law by the Supreme Courts: Brief Reflections on
the Dialogue Between the Judges in French and European Experience, 80 TUL. L. REV.
1377, 1387, 1395 (2006).

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ways of addressing a factual situation, allowing for a variety of alternative and cumulative concepts that can be vertically integrated in different
ways. As long as the comparatist explains the construction of his concepts in a way that allows other comparatists to verify them, there is also
no need to fear 228 that value judgments of the individual comparatists
may become intermingled inseparably with seemingly neutral concepts.
Thirdly, one might suggest that the proposed method makes case studies, which form the bulk of the comparative work, exceedingly difficult.
It is conceded that Conceptual Comparisons makes them more complex.
That, however, is only appropriate. Case studies are inherently dangerous
because they only ask how the law addresses one particular factual situation, without regard to other situations with which the institution may
have to deal. Conceptual Comparisons forces the comparatist to take into
account that not only the law, but also the factual situation it addresses,
must be seen as part of a wider context.
Finally, scholars might object that functionalism may not be displaced
as the core method of comparative law because of its analytical value for
private international law. In fact, there are various approaches to conflict
of laws that use functional or teleological methods in characterizing
foreign legal institutions or rules. 229 However, these approaches have to
be distinguished methodologically from functionalism as the basis of
comparative law. That becomes evident already by the fact that functional analysis in the field of private international law routinely works in
areas that comparative functionalism admits to be beyond its reach, e.g.,
family law. 230 The demise of functionalism as the basis of comparative
studies and its replacement with Conceptual Comparisons would therefore not interfere with the mechanisms of private international law.

228. BARTELS, supra note 146, at 76.


229. For Continental European approaches, see JAN KROPHOLLER, INTERNATIONALES
PRIVATRECHT 122 (4th ed. 2001). For American approaches, see EUGENE F. SCHOLES ET
AL., CONFLICT OF LAWS 4358 (3d ed. 2000) (discussing the functional approach developed to analyze conflict of laws).
230. BERND VON HOFFMANN & KARSTEN THORN, INTERNATIONALES PRIVATRECHT:
EINSCHLIELICH DER GRUNDZGE DES INTERNATIONALEN ZIVILVERFAHRENSRECHTES 6,
Nos. 58 (7th ed. 2002) (F.R.G).